Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2019 (11) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (11) TMI 240 - AT - Central ExciseClandestine removal - clandestine purchase of texturized yarn, 43920.310 kgs under 7 bills, and clearance of dyed yarn made out of the same without payment of duty - Substantial evidence present or not - benefit of N/N. 5/1999 dated 28.02.1999 - principles of natural justice - HELD THAT:- It is not understood as to how the Original Authority and the Appellant Authority have given a finding that the concerned persons of the Appellants have accepted their guilt. It is seen from the Show Cause Notice that Shri Jayesh Pathak did not provide the copy of the bank account statement. This being the case it appears that the allegation is built up by the department only on the basis of the sales register, delivery orders and ledger of the supplier of texturized yarn. This at best is a third party evidence. No corroborate to evidence has been pla Though it can be argued that the cases of evasion cannot be proved with mathematical precision, at the same time the same cannot be sustained with a single evidence that too found in some other premises. The charge of clandestine removal is a serious charge and requires to be substantiated by completing the chain of procurement of raw material, use of other raw material, electricity consumption, labour charges, manufacture of final products, sale of final products, transportation of final product and financial transaction - In the instant case no trace of evidence, even on sample base, has been adduced to complete the chain and prove the allegation. It is not the case of the department that there were discrepancies in the stock in the factory premises of the appellants. The allegation cannot be sustained by negative application i.e. just by alleging that the appellants have not maintained any records for receipt of the texturised yarn alleged to have been received by the appellants. No other evidence, except for the entries in the sales register of another company, to show receipt of raw material, use of other material, labour and fuel and clandestine manufacture and removal, has been put forth by revenue. That being the case we are doubtful if a case of clandestine removal can be sustained. Benefit of concessional of rate of duty as contained in notification No.5/99 - HELD THAT:- The side making allegation has to prove and not the other way round. However, as we have held that the charge of clandestine removal is not sustainable, we find that there is no need to go into the merits of alternate arguments as submitted by the appellants. We also find that as the duty demand itself is held to be non sustainable, penalties on the director and the company need to be accordingly set aside. Appeal allowed - decided in favor of appellant.
|