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2014 (5) TMI 794 - AT - Central ExciseDuty demand - Goods seized and confiscated - 40 bags of gutkha being transported - Driver produced invoice for 10 bags only - Clandestine removal of goods - whether 30 bags of Gutkha which were found loaded in the intercepted truck were cleared by the manufacturing unit M/s. Phoolchand Sales Corporation without payment of duty. - Held that:- immediately after the seizure one Shri Ram Narain Maurya claimed the ownership of the said bags and also produced on record invoice dated 30.8.2004 and issued by M M Marketing, Lucknow. The goods were also released provisionally to said Shri Maurya. However, the appellate authority has rejected the stand of Shri Ram Narain Maurya on the ground that his name was not disclosed by the driver on the spot. - Admittedly M/s. M M Marketing is dealing with the goods manufactured by Phoolchand and Shri Ram Narain Maurya was a sales man. The goods sold by M/s. M M Marketing to Shri Ram Narain Maurya are covered by a regular bills issued by M/s. MM Marketing. There is no direct evidence of clearance of the goods from the factory of M/s. Phoolchand Sales Corporation whereas on the contrary, the ledgers produced by M/s. M M Marketing clearly show the goods in question as also sale of same to Shri Maurya. Charges of clandestine removal are required to be proved by positive evidence and cannot be upheld on the basis of assumptions. When there is clear evidence of removal of goods from the factory premises and other evidence placed on record indicate the ownership of same by Shri Ram Narain Maurya, I find no reason to uphold the charges against all the appellants. In support reliance can be placed on the Tribunal’s decisions in the case of CCE, Delhi I vs. Ashok & Co. Pan Bahar Ltd. [2012 (9) TMI 863 - CESTAT NEW DELHI] and Shirley Dyers vs. CCE, Jallandhar [2013 (12) TMI 108 - CESTAT NEW DELHI]. - Decided in favour of assessee.
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