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2019 (9) TMI 644 - AT - Central ExciseClandestine removal - finished goods cleared without recording such clearance in their Daily Stock Register - demand based on allegation of shortage of goods - principles of natural justice - HELD THAT:- The reasons assigned for proposing the duty demand were the shortage of goods found during physical verification on 10.01.2011 and that the details of such goods were not reflected in the ER-1 returns filed during the impugned period from 28.02.2010 to 10.01.2011. It is found that the said physical verification was carried out as per the request of the Appellant to verify the destroyed goods and grant permission to restart production. In the Adjudication order, no finding has been given by the Asstt. Commissioner about the various correspondences exchanged between the Appellant and the Department though the table containing sequence of events were duly submitted by the Appellant in the SCN reply dated 28.07.2016 which is on record. None of the correspondences reflects that the Department had any suspicion regarding the destruction of goods in the fire incident. The only finding given by the Asstt. Commissioner in the Adjudication order is that the Appellant could not furnish the remission certificate to claim waiver from payment of duty - In any case, mere fact of non-submission of remission certificate is not sufficient to draw an adverse inference to level the allegation of clandestine removal. The Appellant could not be made to suffer for the inaction on the part of the Departmental authorities. Since there is no evidence on record to show that the prayer for remission was rejected, the only conclusion that can be drawn is that the instant demand is wholly pre-mature which cannot survive in the eyes of the law - Further, the findings of Asstt. Commissioner and the Ld. Commissioner (Appeals) are contradictory. Lastly, it is now well accepted that the charge of clandestine clearance is a serious charge for which the department has to show positive evidences against the assessee corroborating various factors like unaccounted procurement of raw material and labour, sale of finished goods in cash, etc. - In the instant proceedings, there is no evidence regarding recording of statements of buyer or transporter, recovery of cash towards sale proceeds of goods clandestinely cleared, interception of vehicles carrying the alleged goods by the department. In absence of the aforementioned evidence, the allegation of clandestine removal levelled against the Appellant cannot sustain. Appeal allowed - decided in favor of appellant.
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