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2019 (3) TMI 1045 - AT - Central ExciseClandestine removal - unaccounted stock of finished goods - truck loaded with detergent cakes of M/s. Maharaja Soaps Industry Pvt. Ltd. present in the premises of M/s. Maharaja Industries without any duty paying documents - allegation on the basis of Mahazar dated 29.3.2011 - admissible evidence or not - Held that:- The entire case has been made by the department on the basis of Mahazar dated 29.3.2011 which is purely inadmissible evidence. Further, the Department has not recorded any statement of Mr. R. Prakash, Manager of M/s. Maharaja Industries. Further, the goods which were loaded in the truck parked inside the premises of the appellant had not been removed from the factory and in the absence of removal of goods from the factory the question of payment of duty or issue of invoice does not arise. Further, the reasons given by the appellant for not updating the daily stock account on account of the accident of Mr. Shashikumar who was maintaining the record was not verified by the Department. It is a settled law that power of confiscation does not extend to goods still inside the factory premises and not cleared without payment of duty - it has been held in various cases that confiscation of the goods and imposition of penalty is bad if the goods are not cleared without payment of duty and are still inside the factory - in the absence of any evidence of manufacture and removal of the goods from the factory of M/s. Maharaja Soaps Industries Pvt Ltd without payment of duty, the order of confiscation of goods and penalty is not sustainable. Redemption fine - penalty - Held that:- There is no evidence has been brought on record by the Revenue that the Proprietor has deliberately used the vehicle for clandestine removal of the goods. Further, there is no evidence either of the owner or driver of the vehicle having knowledge of the alleged removal of goods without payment of duty and the liability of the said goods for confiscation - In the absence of such cogent evidence, the imposition of redemption fine and penalty is not sustainable. Appeal allowed - decided in favor of appellant.
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