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2005 (8) TMI 216 - AT - Central ExciseDemand u/s 11A - Confiscation of Land, Building & Plant & Machinery - option to redeem them on payment of redemption fine - Evidence of Removal - Burden of proof - HELD THAT:- We would find that for production to be suppressed, that by itself cannot be conclusive to establish clandestine non duty paid removal, since production and removal are two distinct relative acts. If unaccounted production was being resorted by the assessee, some material indicating unaccounted production and or removal of recent origin, on date of search would have been found on the visit on information and by surprise by the officers. No such material exist. Mere unauthorised and clandestine manufacture of PTY, as alleged by Revenue, cannot be established without 'removal'. 'Unauthorized and clandestine' are words associated more with 'removal' than production. The findings of the Adjudicator are mere ipsi dixit and cannot be sustained, in absence of any corroboration of tainted removals. Since, the burden of clandestine Removal is not discharged, the reliance on Kanungo & Co.[1972 (2) TMI 35 - SUPREME COURT] and Siemen Ltd.[1993 (8) TMI 193 - CEGAT, CALCUTTA] by the adjudicator cannot be upheld. We find that if the said record, on Oil consumption, can be relied upon by Revenue, the same cannot be discarded, as regards POY Consumption & PTY production also shown with same clarity of detail shift wise etc. The ld. Advocate for the appellants has produced material figures, from the said record and the RG1 figures, to indicate that the records as regards entries of POY consumption & PTY manufacture cannot be disputed. These figures/charts do not demonstrate that unaccounted PTY was ever manufactured or and removed. We find the notice was issued on 24-3-2000 and the allegation of unaccounted production is for the period March 1994 to November 1994 & April 1995 to March 1996. Part of the period is clearly barred by limitation of even 5 years. The period within 5 years also cannot be upheld for want of suppression or ingredients of proviso clause to Section 11A(1). When we find no unaccounted production and or non duty paid removals of PTY established, we find no reason to confirm the duty demands and uphold the penalties as arrived by the adjudicator. The same is required to be set aside. In view of the findings the order is set aside and appeals allowed.
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