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2019 (4) TMI 1263 - AT - Central ExciseClandestine removal - the stock shown in ER-1 return was not physically present in the factory - HELD THAT:- There is self-contradiction in the department’s own case. On one hand they are alleging that the stock shown in ER-1 return was not physically present in the factory, at the time of handing over of the possession and on the other hand they are accepting the duty of around ₹ 5.00 Lakhs made by the appellant on the sale of the same stock of rusted MS ingots. Not only that, the lower authorities have confirmed the demand of ₹ 7.76 Lakhs (approx.) in respect of the same quantum of inputs and other materials by treating the same as clandestinely removed - it is very hard to understand that if the stock of the goods was not available in the factory, as alleged by the Revenue, how could the appellant sell the same in the year 2015, on payment of duty, which stands accepted by the Revenue - the findings of the lower authorities as self-contradictory and hence not sustainable. Apart from making a bald allegation of removal of the said goods in a clandestine manner, Revenue has not produced any evidence to that effect. Neither the buyers nor the transporters stand identified by the Revenue. Further there is no proof of receipt of consideration against the said removals. Admittedly when the appellant has reflected their goods in ER-1 returns, they are duty-bound to show the clearance of the same and which clearance stands shown by their in the year 2015 by showing the sale of the rusted ingots. Further Revenue has not made any investigations at the end of the buyers of the said rusted ingots so as to establish the sale as fake. Appeal allowed - decided in favor of appellant.
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