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2013 (7) TMI 595 - AT - Central ExciseClandestine Removal of goods - Case based upon an assumption that wastage arisen during the course of manufacture of POY should not be more than specified percentage - Wastage arisen during the course of manufacture of POY should not be more than 7% and Appellants recorded the wastage of around 16% - Cleared POY in the garb of extra wastage shown by them – Held that:- Not even any iota of evidence produced by the Revenue to confirm the allegation. Entire case is based upon assumption and presumption and neither any documentary evidence has been seized by the Revenue nor any customer has agreed to have received POY under the garb of waste - The process adopted by one manufacturer for manufacture of POY as also the technology, the kind of machines used and the age of machine used would be relevant factors to decide the quantum of generation of waste. Excess waste may arise out of number of facts as detailed by the expert which stand un-rebutted by the Revenue. Such higher production can be on account of deviation in production parameters, fault of operators of machines, due to use of sub-standard raw materials, technology inefficiency or the power supply cut therein or may be attributed to inferior quality of fiber etc - Revenue cannot build its case based upon the theoretical percentage calculation of waste generated, without production of any evidence to reflect upon the above allegation- Decided in favor of Assessee. Adjudicating authority confirmed the demand of duty of Rs.6,27,997/against the manufacturing unit in respect of 5 invoices which stand procured by the Revenue along with intelligence report – Held that:- Invoices not recovered from the appellant’s factory. As such, the onus to show that appellant cleared the goods under the cover of said invoices lies very heavily on the Revenue. The Commissioner while confirming the demand has taken into account the statement of Shri R C Saxena. However, it is the appellant’s case that as Shri Saxena was relieved from his service on account of financial mishandling and he fabricated these documents and produced the same to the Revenue so as to take revenge from the appellant. However, subsequently he filed an affidavit specifically stating that these invoices were fabricated by him - Apart from these invoices, there is virtually no evidence on record to show that the appellant has cleared the goods under the cover of such invoices - Accordingly the confirmation of demand to the extent of Rs.6,27,997/and penalty imposed on unit and imposition of penalty is set aside – Decided in favor of Assessee.
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