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2021 (9) TMI 26 - AT - Central ExciseClandestine removal - quantities of the finished goods shown as excess clearance in 3CD form on comparison with the same shown in ER 1 return by the Appellant - demand is based only on the figures reported in the annexure of the tax audit report - other substantive allegations or not - burden to prove - demand on the basis of assumptions and presumptions or not - HELD THAT:- In the instant case, it is seen that the Adjudicating Authority has confirmed the demand of excise duty only on the ground that there are differences in quantity of clearance of goods as per ER 1 and form 3CD as filed by the Appellant, even after accepting that the differences are on account of trading of goods which does not form part of clearance as per ER 1 return of the Appellant - The Appellant has produced their tax auditors certificate certifying the reconciliation which was also produced by the Appellant before adjudicating authority and we find that the said reconciliation clearly establishes the reconciliation between the figures of clearance as per 3CD and ER 1. Alternatively, it is also on record that the adjudicating authority has not given any cognizance to the submission of the Appellants as regards allegation of clandestine removal and the burden to prove the same - no investigation has been conducted by the department to prove the allegation of clandestine removal in the case and thus the demand of excise duty merely based on differences in figures of consumption cannot be sustained. The Department has failed to discharge the burden of proof to prove the allegation of clandestine removal in the case and thus, the demand of excise duty merely based on differences in figures of consumption, cannot be sustained - demand of excise duty only on assumption and presumptions in quantity of clearance of finished goods figures of tax audit form 3CD and ER 1 cannot be sustained on merits - Appeal allowed - decided in favor of appellant.
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