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2005 (6) TMI 191 - CESTAT, MUMBAIDuty of unaccounted removal of plastic laminated sheets - Clandestine manufacture and removal - Evidence - Burden of proof - HELD THAT:- As seen from the observation, the ld. Commissioner is in doubtful state of mind as to the application of level of degree of evidence or proof required to establish the clandestine manufacture and removal as they are not criminal proceedings and while holding so, he has thrown the burden on the assessee to establish the said fact and raised presumption as against the assessee on the sole ground that purchase bills were in their name and payment details also stand reflected in the books of account of supplier; if they have sold base paper, it is for them to establish the same fact. The ld. Commissioner erred in his observation and not applying the principle of degree of proof, which is equally applicable to the assessee as in the case of the Department. The Department alleges clandestine removal of the goods, prima facie, has to prove the same by proper and cogent evidence when it is the contention of the assessee that part of the base paper was not utilized in the capital consumption and sold outside while maintaining the record, the same is to be taken into consideration. It is absolutely not proper in raising adverse presumption about the same. Thus, we set aside the impugned order passed by the Commissioner of Central Excise, Ahmedabad-II, and allow these appeals.
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