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2017 (9) TMI 982 - AT - Central ExciseClandestine removal - case of Revenue is that Assessee-respondent failed to prove that it had not followed questionable modus operandi - Cross verification of investigation result with evidence gathered from the premises of third party corroborated the malafides of the respondent proving evasion - Held that: - It is strange to notice that learned Commissioner (Appeals) did not look into the incriminating evidence gathered by investigation in the course of search. He superficially held that private records do not establish the clandestine removal since those are not considerable as evidence - If certain materials are of inevitable necessity for somebody, he keeps such materials with him for which he is answerable when the contents in the said materials have nexus to the clandestine removal. Investigation has brought out that the real data relating to clandestine removals were concealed in a games file known as Games LX 01-02. Such symbolic abbreviation was the design of the respondent to retrieve the data for its own use. Ld. Commissioner (Appeals) failed to appreciate that respondent had not accounted for fabric processed by it and cleared the same without payment of duty. He has only worked hard with a misplaced sympathy to grant relief to the respondent without testing the intensity and gravity of the seized electronic record as well as statements recorded having bearing to the contents therein. The chain of evidence brought out by investigation were given burial death by ld. Commissioner (Appeals). When clandestine removal was backed by plethora of evidence, gathered by investigation, it was the respondent who was to defend its case leading evidence to discard the same. Burden of proof was not discharged by it to rebut the allegations of Revenue based on evidence nor the respondent came out with clean hands to prove that it was innocent and there was no clandestine removal. Appeal allowed - decided in favor of Revenue.
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