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2019 (3) TMI 109 - AT - Central ExciseClandestine manufacture and removal - sponge iron, steel ingots, runners, dolochar & char - short payment of duty of excise by undervaluing the excisable goods - cash found in he premises, whether unaccounted or not? - the case of the Revenue is mainly on the basis of procurement of unaccounted raw materials and its use in the manufacture of unaccounted finished goods, alleged to have been cleared clandestinely - Held that:- In the search proceedings no unaccounted cash was found - also, iron ore is a controlled commodity and no iron ore can be dispatched or received by the appellant assessee, without permit issued by the competent authority of the mines department of the States Government. Normally iron ore is dispatched in wagons from the mines, which is accompanies by ‘Fit Pass’ or permit issued by the competent authority. No supplier of alleged quantity of iron ore have been identified. Neither there is evidence of any transportation for receipt of unaccounted iron ore. Similarly there is no evidence of receipt of other raw materials like dolomite and coal - the allegations are mainly based on the unsubstantiated data retrieved from laptop/ pen drive which is not reliable, as the same does not have evidentiary value as provided under Section 36B of the Act, as the condition precedent for placing reliance in respect of data obtained from computer/pen drive, etc have not been established, like whether the paper print out containing data was produced by the computer during the period over which the computer was regularly being used during the relevant period by the person having lawful control over use of the said computer. Further, the document seized from the guesthouse cum residential premises of Shri Nitin Agarwal also lack evidentiary value - also, it is evident from the records that stock verification have been done by way of eye estimation on the date of search, as no calculation sheet is admittedly available on record. Further, there is no corroborative evidence of clandestine activity by way of unexplained consumption of electricity, excess utilisation of labour, evidence of clandestine transportation nor there is evidence of any clandestine cash flow found. The allegations in the show cause notice are presumptive and are not based on the actual state of affairs and /or corroborative evidence - the impugned order is not maintainable - appeal allowed - decided in favor of appellant.
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