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2022 (2) TMI 359 - CALCUTTA HIGH COURTClandestine removal - suppression of exact quantity of raw materials used in manufacturing activity - wilful misrepresentation of own production and conversion job as well as consumption of raw material and spending of the by-products - HELD THAT:- The assessee has filed appeal before the Tribunal challenging the said order and explained that their manufacturing activities as to how they were engaged in manufacture for themselves as well as they have been carrying on conversion job for another third party. After nothing the facts the Tribunal held that LABSA and Spent Sulphuric Acid are of the same quality and the processing tank is also common in the factory as it is not possible to manufacture goods separately. Further, the Tribunal analysed the total consumption of LAB and Sulphuric Acid during the material period and took note of the ratio adopted and on facts held that there is hardly any difference between the ratio adopted for their own manufacture and conversion job - the Tribunal concluded that without any evidence on record the allegation of clandestine removal cannot be made. The Tribunal rightly granted the relief to the assessee as allegation of clandestine removal is a very serious charge and the onus of establishing the same is first on the department and upon the onus being discharged in the manner common to law, then and then only the burden of proof shifts to the assessee. In the instant case, admittedly there was no material on record establishing the charge of clandestine removal and such charge was made against the assessee by way of an inference taking note of the ratio adopted in the manufacturing process. Appeal dismissed - decided against Revenue.
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