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2014 (6) TMI 232 - AT - Central ExciseDuty demand - Clandestine removal of goods - Insufficient evidence - Held that:- impugned case is made on the basis of records taken from PEL and on records known to PEL. If the case made out by revenue is taken as correct there was dilution of the concentrate supplied by PEL to produce more goods than the quantity that could have been produced from concentrate supplied by PEL to the extent ranging from 1.65% to 2.78% ignoring the year 1989-90 when it was as high as 6.2%. This position was known to PEL and they chose to do nothing about it. This appears to be an unlikely scenario considering the fact that PEL was very conscious of the quality of their product. So it would appear that PEL did not think that any dilution of their concentrate beyond prescribed limit was done by the Appellant. If that be the case, the case made by Revenue fails. The fact that the Appellant had paid his share of advertisement charges to PEL based on the sales figures in PEL’s books rather than based on clearance figures in the Appellant’s books is also not a sufficient evidence to prove clandestine removal because advertisement is a market development programme and the sales in the territory assigned to the Appellant in an year (even if a part of the sale was not made by him) is a factor from which Appellant stand to gain in subsequent years - So the case made out without investigating the source of the concentrate or the other inputs like pilfer proof caps to produce the quantity of final products held to be clandestinely manufactured is very weak and we are of the view that the demand confirmed cannot be sustained on the basis of evidence produced - Decided in favour of assessee.
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