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2015 (10) TMI 1566 - AT - Central ExciseClandestine manufacture and removal of goods - moisture contained in tobacco - Confiscation of goods - Imposition of penalty - Held that:- the appellant has produced a report dated 14th February 2007 of Harcourt Butter Technological Institute, Kanpur which confirms that moisture content is 15.38%. The said report produced by the appellant has been brushed aside by the Adjudicating Authority which is not proper. As it is an admitted fact that tobacco being an agriculture product having moisture content and no sample of raw tobacco has been drawn to ascertain the moisture content, the demand on the basis of consumption of tobacco in a particular period on which test is conducted later on is not sustainable. There is no evidence to show the excess consumption of the other raw materials to be used in manufacture of Gutkha in the show cause notice. As without the usage of other raw materials which forms 92% quantity to manufacture Gutkha the demand is not sustainable. - he is not going by the balance sheet figure and test report only, but Department has adduced sufficient corroborative evidence but no such evidence has been discussed in the impugned order. Moreover, the statements relied upon by the Adjudicating Authority of various persons, the cross-examination has not been afforded to the appellant for fair trial. The allegation of clandestine manufactured and removal of goods is not a simple allegation, the allegation is to be supported by sufficient and required evidence as held by this Tribunal in the case of Arya Fibres Pvt. Ltd. vs. CCE, Ahmedabad - II reported in [2013 (11) TMI 626 - CESTAT AHMEDABAD], wherein the following principals have been laid down to allege clandestine manufacture/removal - Without establishing the above evidences, the demand on account of clandestine manufacture/removal is not sustainable - Decided in favour of assessee.
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