TMI Blog2007 (8) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue has claimed that following two questions of law would emerge from the order of the Tribunal for our determination: (a) Whether CESTAT was correct in holding that there was lack of evidence in the matter? (b) Was the proof led by the department not sufficient to establish the probability, to a required degree, to prove that respondent no.1 was manufacturing and removing the excisable goods clandestinely; and since the respondent no.1 has not effectively disproved the evidence led by the department, was the Tribunal legally correct to arrive upon the decision delivered vide the impugned order in divergence of earlier decision taken in the case of Roxy Enterprises Pvt. Ltd. v. CCE, Delhi - 1992 (4) ECR 361 (R)" 2. Facts ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the assessee. The adjudicating authority found that the central excise duty of Rs. 41,34,850/- had not been paid and confirmed the demand vide order in original dated 4-12-2003 (Annexure A.1). The assessee filed appeal before the Tribunal. The order in original dated 4-12-2003 was set aside by the Tribunal vide order dated 29-7-2004 (Annexure A 2) primarily, on the basis of the finding that the note books recovered on 4-9-1999 did not belong to the assessee (Annexure A.3). The view of the Tribunal is discernible from para 4 of its order which reads as under : "We have considered the submissions of both the sides. The demand of duty has been confirmed against the appellants and the penalties have been imposed on them on the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time. A perusal of the statement of Rahul Keshwani reveals that it was with reference to books recovered from the factory premises. It was not with reference to any specific register or record. It was merely a general statement. Further, he has specifically mentioned that the details therein would tally with their statutory records. The learned Advocate has rightly emphasised that the RG I register was also seized on 14-9-1999 itself as it appears that as one of the seized register at srl. no. 24 of the Annexure to Panchnama. We also find force in the submissions of the learned Advocate that none of the customers mentioned in the note book was contacted by the Department nor any evidence had been brought on record as to how the alleged goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nchnama and infact differ from the note books supplied to the assessee. It was further found that no signatures of any person to show that these were the same note books which were seized from the factory premises of the assessee. The Tribunal resultantly entertained a doubt about the genuineness of the note books. The Tribunal also examined in detail the statement of Rahul Keshwani by concluding that no question was put to him about the entries made in the note books nor his statement was recorded on 14-9-1999 itself. The Tribunal concluded that clandestine removal has to be proved by evidence such as purchase and utilisation of raw material, labour employed, power consumption etc. The statement made by Shri N.K. Govila was also ignored as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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