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2017 (3) TMI 763 - AT - Central ExciseCigarettes - clandestine manufacturing and removal under own Brand Name - allegation on the basis of the details contained in the laptops seized from the possession of Shri Marvin Ali, General Manager. In the statement recorded from Shri Marvin Ali initially he had accepted the clandestine removal of cigarattes. However, ld. Commissioner dropped the demand citing the reason that Shri Marvin Ali has retracted his statements. Also during his cross-examination before the adjudicating authority he has denied his earlier statements and claimed that these have been taken under duress. Held that: - Section 14 of the CEA empowers the departmental officers to record the statement of witnesses which are formally admissible as evidence. However, in the present case almost all the statements have been categorically retracted. We also observe that the details are available in the laptop only for a period of three months. Section 36B specifies that computer printout will be admissible only when it is established that the computer has been used regularly in the ordinary course of activities to store such information. Since, this aspect has not been established; the adjudicating authority has rightly chosen to disregard this piece of evidence. Whenever allegations of clandestine clearances are made, the onus is clearly on the Revenue to establish the clandestine manufacture and clearance of the goods on the basis of tangible and reliable evidence. The onus on the department is even more in the case of units which are under physical control such as the respondent’s factory which is manufacturing cigarettes - Revenue has failed to prove conclusively that the respondent has clandestinely manufactured and removed cigarettes and evaded the Central Excise duty. The evidence marshalled by the Revenue has been proved to be grossly inadequate to discharge the burden of conclusively establishing clandestine clearance. The evidence on record at best raises a doubt in our mind but fails to establish the charge of clandestine clearance. The evidence is proved to be grossly inadequate even by the yardstick of preponderance of probability. Appeal dismissed - decided against Revenue.
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