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2017 (12) TMI 382 - AT - Central ExciseClandestine removal - appellant is clearing the goods to the parental unit without payment of duty as the goods are exported by the parental unit - As the parental unit did not mention the goods cleared against ARE-1 No.19 and 20 in the shipping bills, it was alleged that the goods covered under ARE-1 have been cleared clandestinely by the appellant without payment of duty - difference of opinion - majority order. Held that: - the Revenue's allegations are that the goods in question stand clandestinely removed to the domestic market in which case the benefit of non-duty paid clearance for export cannot be extended. For making such allegations, the Revenue has not produced any evidence as to show and establish that the goods were diverted and as to how compensation for the same was received by the assessee - It is a matter of settled law that clandestine activities of any manufacturer, alleged by the Revenue, are required to be substantiated by production of tangible and positive evidences. The same cannot be made on the basis of assumptions and presumptions. Revenue, in the present case, has arrived at the above finding on the basis of surmises and conjunctures on the sole ground that ARE-1 Nos.19 & 20 were not mentioned in the shipping bills. It is seen that the appellant had produced evidences on the record to show that the said goods cleared under the said ARE-1 were duly reflected in the invoices issued by the parent Unit for export, though the same were not mentioned in the shipping bills. The order of learned Member (Technical) is indeed on the procedural technical violations and does not conclude on the basis of any evidences. Admittedly, a particular act is required to be done in a particular manner as provided under the statute but an inadvertent mistake to follow the procedural aspect cannot be adopted for arriving at the conclusions against the assessee. It has to be kept in mind that it is the Revenue which is alleging clandestine removal and as such, the onus to prove the same lies heavily upon them. Admittedly, Revenue has not been able to produce any evidences to that effect - the inadvertent mistake of non-mentioning of ARE-1 Nos. 19 & 20 in the shipping bills cannot lead to any adverse conclusion against the assessee, especially, when such exports stand established by other parallel documents. Appeal allowed - decided in favor of appellant.
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