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2015 (2) TMI 1077 - CESTAT BANGALOREDuty demand - Clandestine removal of goods - Held that:- Charges of clandestine removal are required to be proved by the Revenue by production of sufficient, positive and tangible evidence. The same cannot be confirmed on the basis of doubts and assumptions and presumptions. It is seen that the Revenue has mainly relied upon the entries made in seized Register. It is not disputed that the said Register was not being maintained by the respondent in the ordinary course of their business but was a private Register being maintained by the respondent s employee Shri Nayak. The first obligation on the part of the Revenue was to examine Shri Nayak and record his statement, seeking clarifications in respect of the entries. For the reasons best known to the Revenue officers, this has not been done. - The adjudicating authority had, in compliance with the said directions of the Tribunal, issued summons to various deponents of the statements, who did not appear for the same. As such, he has proceeded to examine the said statements. The adjudicating authority has recorded that the said statements of the holder of bank account, counting clerk, despatch clerk and contractor, etc., are not inculpatory in nature inasmuch as neither of the statements of the said deponents have admitted any misdeed on the part of the company. Statement of Shri Ashok Mittal, Managing Director of the Company has also not accepted the fact of clandestine removal of the goods. Companies are in no way connected with the assessee company and there is nothing on record to show that they were fictitious firms and the consideration for sale of the goods by the said firms travelled to the assessee. The adjudicating authority has examined the said plea of the assessee and has categorically recorded that the goods cleared under their invoices were rib bars of 8 mm and 25 mm whereas the goods being manufactured by them were from 10 - 20 mm and they do not have machinery to manufacture the said goods. In the absence of any evidence to rebut the findings of the Commissioner, I find no reasons to interfere in the same - In the absence of any other evidence to show that the high power consumption was on account of excess manufacture of goods, he has come to a finding that there is not even preponderance of probabilities as regards the excess manufacture of the goods. - Decided against Revenue.
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