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2016 (3) TMI 1173 - AT - Central ExciseCigarettes - removal without cover of invoice - the cigarettes in the brand name of the appellant were recovered from one M/s. Shardha Traders but Sh. Ajay Adwani proprietor of Sharddha Traders never named the appellant that they have procured the said goods from the appellant - demand of duty with interest - penalty. Held that: - As the appellant unit was in physical control of the Central Excise Department and nothing incriminating was recovered from the appellant and the officer incharge of factory of the appellant were never investigated in that circumstances, the charge of clandestine removal of goods is not sustainable. The allegation has been made on the basis of assumption and presumption, no statement of the appellant was ever recorded, none of the person whose statement were recorded and relied has implicated the name of the appellant - As all the evidence to alleged clandestine removal are absent from the investigation, in that circumstances, allegation of clandestine removal of goods is set aside. Reliance was placed in the case of MUSK TOBACCO (INDIA) PVT. LTD. Versus COMMR. OF C. EX., LUCKNOW [2011 (11) TMI 570 - CESTAT NEW DELHI], where it was held that In the absence of evidence, the duty on the basis of third party statement cannot be demanded from the appellant. Appeal allowed - decided in favor of appellant.
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