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2013 (11) TMI 1521 - AT - Central ExciseBenefit of cum duty price - reduction of duty - penalty under Section 11AC - Held that:- Even though the demands are based upon the worksheets and statements, however the investigation does not show as to how the goods or what quantities of goods were cleared by the appellant and who are the buyers. When there is no evidence of clearance of goods from the factory of the appellant nor there is any buyer the demand cannot be sustained on the basis of mere bank statements of the owners of the alleged dummy concerns. - though the proprietor of the dummy concerns were called for cross-examination thrice but as their addresses shown in the bank statements were false hence they could not be found and that the Revenue has made all efforts to secure there availability for cross-examination. The adjudicating authority has also held that the appellant during personal hearing did not press for cross-examination. On this aspect I find that when the Revenue has recorded the statements of these alleged dummy concerns at the time of investigation, in that case these persons could also be made available for cross-examination as they were Revenue’s witness. Thus the statements of these persons cannot be sole basis for fastening demand on the appellant. The show cause notice or the orders passed by the adjudicating authority does nowhere shows as to how the said amounts pertain to clandestine clearance by the appellant. It is more so that not a single buyer’s statement was recorded nor it is shown as to who are the buyer of said goods. The amounts received in the bank accounts of third party i.e. proprietors of alleged dummy concerns cannot be said to be pertain to alleged clearance of goods of appellant unless the buyers of the goods or any evidence in respect of clearance is produced. The Revenue has recorded the statements of many persons, however not a single buyer of the goods was enquired. The duty demand can be sustained only when the goods are manufactured and cleared. However in the instant case there is not a single consignee of the goods, no transporter of the goods. - since the demands are not sustainable, as a consequence the penalties are also not sustainable and are thus set aside. I therefore allow the appeal filed by M/s. Shree Maruti Fabrics with consequential relief - Decided in favour of assessee.
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