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2017 (3) TMI 57 - CESTAT NEW DELHIClandestine removal - tobacco pouches - Chewing Tobacco and Unmanufactured Tobacco, Packing Machine (Capacity Determination and Collection of Duty) Rules, 2010 - appellant claim that the whole demand is confirmed on the presumption that the mere availability of some machines is sufficient and it is not required for the Department to prove the working condition or usage of such machines. Held that: - the actual condition of the machine at the time of detention of the said machines has become crucial - wherever the packing machines were lying, in any premises, including the premises of the manufacturer or seller of such machines, then the duty can be demanded from them in terms of the Compounded Levy Scheme. Apparently no such situation is covered by the Scheme. Presumptive duty liability as envisaged in the Compounded Levy Scheme of 2010 Rules cannot be extended to a level that automatic duty liability will arise in all cases, where some packing machines are found in a premises. While the presence of machines is an admitted fact, the manufacture and clearance has not been evidenced with any corroborative evidence established during investigation. The statements were relied upon as corroborative evidences and the cross examination of witnesses who made such statements was denied without valid ground. There is no other corroboration evidencing operation of these machines even for a single day during the impugned period - These evidences, the admissibility of which itself is legally not sustainable, cannot be the basis for confirmation of duty on the goods allegedly manufactured and cleared by the appellant. The impugned order has fallen short in appreciating the factual position, evidence gathered and applicable legal provisions in arriving at the findings of non-payment of duty - appeal allowed - decided in favor of appellants.
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