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2017 (7) TMI 401 - CESTAT MUMBAIClandestine removal - extra filling of material in the tubes - Held that: - learned adjudicating authority has given detailed findings considering all aspects in the process of manufacturing, probability of variations in the quantity shown in the Laboratory records and Excise records and come to the conclusion that there is no case of removal of goods without payment of duty. he adjudicating authority has taken too much pain for concluding that there is no case of evasion of duty on the ground that the difference between the lab reports and Excise reports is not due to excess production and clearance of production without payment of duty but due to manner of process of manufacturing. The adjudicating authority also come to a conclusion that there is no independent evidence put forth by the department to establish any clandestine removal - Even the department accepts the different of production recorded in Excise records and Lab records but did not adduce any evidence that there is excess production and the same was cleared without payment of duty. In absence of any evidence on clandestine removal even if there is a difference between the two records of the appellants the clandestine removal cannot be concluded only on that basis - demand set aside. As regards the other 3 appeals bearing No. E/202/08, E/203/08 and No. E/762/08 these are related to refund claim of the duty paid by the appellant on the difference of quantity of Excise records and Lab records. Therefore the refund is consequential to the demand case which was decided in E/201/08 and E/167/09. All the 3 appeals deserve to be remanded to the adjudicating authority for reprocessing the refund. Appeal allowed in part - part matter on remand.
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