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2010 (11) TMI 275 - HC - Central ExciseClandestine manufacture and removal - Demand of excise duty and penalty - Evidence - The respondent is the manufacturer of “Shimla” brand of Gutkha , but the consignment has not been seized at the time of its transportation from the factory of the respondent - The goods are seized on the ground of Clandestine manufacture and removal without payment of duty excise duty and penalty by respondent at Indor - Appellant has failed to point out from the record any material, which could establish that the seized goods were manufactured by the respondent or they were being transported at the instance of the respondent or they were cleared from the factory premises of the respondent clandestinely without payment of the excise duty - Merely, because the seized item was Gutkha bearing brand name “Shimla” and there is admission of Nitesh Wadhwani that he was also manufacturing Gutkha by brand name “Shimla”, only on that basis it cannot be conclusively held that the seized item was manufactured and cleared by the respondent - The written explanation of the respondent that the seized item was not manufactured by it, but was a duplicate product and the reasons given by him indicating that it was a duplicate product cannot be ignored . The revenue has failed to produce even a single piece of evidence that the seized goods were manufactured by the respondent or they were clandestinely removed without payment of excise duty from the factory premises of the respondent - The revenue has sought to levy excise duty and penalty on the respondent merely on the basis of assumptions and presumptions and such a course is not permissible in law - Thus, question is answered by holding that for want of evidence, the Tribunal was justified in not fastening the liability on the respondent and dropping the proceedings against him.
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