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2008 (9) TMI 355 - AT - Customs100% EOU - Clandestine removal – held that - There is no proof of transportation. There is no proof of receiving extra consideration. There is also no proof of raw-material required, energy consumed etc. to make such goods which are alleged to be clandestinely removed - It is settled position in law that clandestine removal is required to be proved, by evidence, and can not be based upon conjectures and surmises -With regard to the demand of Rs. 158485/-, it is not understood how a demand can be raised with regard to erroneous availment of Cenvat credit when the invoices of the inputs themselves show that they are not duty paid and, therefore, no Cenvat credit could have been taken in that regard. The said demand is clearly based on non-application of mind – the argument that of breach is alleged primarily on the ground that the EOU did not have manufacturing capacity at the relevant time nor had it commenced commercial production during the said period is not acceptable since the goods are used in export and it is immaterial that the goods are manufactured by EOU or DTA
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