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2018 (7) TMI 320 - AT - Central ExciseClandestine removal - no evidence produced by Revenue to establish the charge - penalty - Held that:- The department has not subsequently brought out any evidence regarding method and mode adopted by it for physical stock taking of the subject goods available in the factory of the appellants. Since the department has solely relied upon the submissions to arrive at the conclusion, that there was shortage of the impugned goods in the factory, averment made therein cannot be legally sustained for initiation of proceedings against the appellant for raising the demand and for imposition of penalty. The department has not brought out any tangible evidence to prove that the appellants had the intention to remove goods in clandestine manner. No doubt that the investigation conducted do suggest a strong suspicion about clandestine activities but a suspicion howsoever grave cannot take the place of proof of clandestine clearance like seizure of clandestinely removed goods, seizure of cash admitted by the concerned persons to be sale proceeds of the illicitly removed goods, excess procurement of raw materials, excess power utilization, confirmation by some of the transporters and recipients to indicate that such clandestine cleared goods have been transported/received by them. In the absence of any of these positive evidences and non-extending the opportunity of cross-examination the case of clandestine clearances of Iron and Steel products by the appellants is not established - demand do not sustain. Penalty - Held that:- Once on merit the case has been decided in favour of the appellants, then penalties cannot be imposed upon them under the various provisions of Central Excise Act, 1944 and the rules made thereunder - penalties set aside. Appeal allowed - decided in favor of appellant.
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