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2019 (11) TMI 305 - AT - Central ExciseClandestine removal - manufacture of Pan Masala Gutkha bearing the brand name “Shyam Bahar” - opportunity to cross-examine - opportunity of personal hearing - it is alleged that the charges of clandestine removal are based on third party documents and based on the oral statements who were not cross-examined - HELD THAT:- Since the said cross examinations were not conducted, the basis for conclusion of total quantity of Gutkha alleged to be clandestinely cleared has not been established. Further, wherever Zarda, Masala and Shyam Bahar was stated in the GRs and lorry challans the same was clandestinely removed Shyam Bahar Gutkha without payment of duty by the appellant has also not been established because the cross examination of the representatives of transporters was not allowed. We, therefore, hold that the clandestine manufacture and clearance of alleged quantity of gutkha is not established. The seized currency of about ₹ 4.38 crores cannot be held to be sale proceeds of clandestinely removed gutkha - the demand of Central Excise duty of about ₹ 7.17 crore is not sustainable - the confiscation of currency of ₹ 4.38 crores approximate is not sustainable - therefore, penalties are also not imposable & interest is not recoverable. Appeal allowed - decided in favor of appellant.
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