TMI Blog2012 (9) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) - Decided against Revenue. - E/1268/2010-SM(BR) in Cross Objection No. E/CROSS/140/2010 - Final Order No. 1402/2012-SM(BR)(PB) - Dated:- 21-9-2012 - Ms. Archana Wadhwa, J. Shri N. Pathak, DR, for the Appellant. None, for the Respondent. ORDER Being aggrieved with the order of Commissioner (Appeals), Revenue has filed the present appeal. I have heard Shri Nagesh Pathak learned DR appearing for the Revenue. Nobody appeared for the respondent. 2. As per facts on record, respondent is engaged in the manufacture of glassware falling under Chapter No. 70 of the Central Excise Tariff Act, 1985. Their factory was visited by the officers on 18-3-2009, who conducted various checks and verifications. As a result quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the original adjudicating authority by observing as under :- After going through all the submissions of both the sides, I observe that it is a recorded fact that the appellant s authorized signatory could not explain the reason for not recording the excess goods found in the factory. In reply to show-cause-notice, they have pleaded that the goods were in unpacked condition not ready to be entered in RG-1 register but, the adjudicating authority has not recorded any finding to counter the submission, which means that the submission is accepted. The other fact which is not under dispute is that the department also could not succeed in bringing any evidence on record to substantiate the charge of intention to remove the goods clandestin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient ground for confiscation of seized goods unless there is either an attempt or preparation to remove goods without payment of duty. Moreover, the burden to prove that seized goods were to be removed in clandestine manner with intention is evade payment of duty lies on the department. In the instant case, the department has failed to discharge the burden to adduce any evidence regarding clandestine removal. The principle laid down by the Hon ble Tribunal in the case of Bhillai Conductors Pvt. Ltd. (supra) and others referred and relied upon supra also support my view. Following the principles of judicial discipline, I find that the confiscation of unaccounted goods lying within the factory premises when the goods were not liable to duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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