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2019 (7) TMI 732 - AT - Central ExciseClandestine removal - allegation of wrong availment of area based exemption - allegation that goods shown to have been manufactured and cleared from Rookee unit, so as to avail the benefit of area based exemption whereas in fact manufactured and cleared from their Ghaziabad unit - allegation based upon the investigations made at the Roorkee Units and the statements of the Managing Director and four employees of Roorkee Unit - different product manufactured by the units - HELD THAT:- The entire case of the Revenue is based upon the scrutiny of the documents at Roorkee . Apart from the statement of the four employees of the Roorkee unit and the Managing Director, there is no further evidence produced by the Revenue in the shape of statements of transporters of the goods or the identification of the buyers. There was also no shortage of raw materials at Roorkee unit, thus indicating that the documents maintained at Roorkee unit were perfect - Wherever the GR numbers are not reflected in the invoices, Managing Director has indicated in his statement that in those case the customers themselves have taken the delivery at the factory gate of Roorkee unit and arranged transport. The Revenue has not bothered to make enquiries from the customers to verify the truth of the said statement of the Managing Director. Appellants have shown documentary proof in the form of GRs showing dispatch to Rishi Kesh, Chandigarh and Pathankot. Revenue has not made any efforts to counter-check this factual aspects either from the transporters or from D.G. Border Roads Organisation. They have placed two affidavits to that effect before the adjudicating authority which do not stand considered by the adjudicating authority - Apart from that the appellants have also produced confirmatory letters from various customers to the effect that they received the goods only from Roorkee unit. The adjudicating authority has not bothered to examine the said customers and has simplicitor discarded the said evidence. It is well settled law that the findings of clandestine removal are required to be established on the basis of positive and sufficient evidences. As already observed, in the present case the demand is being confirmed against Ghaziabad unit, without producing any evidence against the said manufacturing unit. There is not even an iota of evidence indicating that the clearances stand effected from the said unit. Appeal allowed - decided in favor of appellant.
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