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2018 (9) TMI 746 - HC - Central ExciseClandestine removal - shortage of finished goods - Confiscation - Whether mere storage of finished products and lying in the factory can be treated as unaccounted stock liable for confiscation? - Whether the Tribunal can ignore the plea of “defect in quantification” and impossibility of search operation within the short time and pass the order without reference to such issues? Held that:- There has been no investigation into the material aspects, which are required to be proved for establishing an allegation of clandestine removal - It may be true that the burden of proving such an allegation is on the Department. However, clandestine removal with an intention to evade payment of duty is always done in a secrete manner and not as an open transaction for the Department to immediately detect the same. Therefore, in case of clandestine removal, where secrecies involved, there may be cases where direct documentary evidence will not be available. Based on the seized records, if the Department is able to prima facie establish the case of clandestine removal and the assessee is not able to give any plausible explanation for the same, then the allegation of clandestine removal has to be held to be proved - the assessee has not denied any of the allegations, which were put forth except for simple and flimsy retraction. If the assessee had sufficient records to establish their innocence, nothing prevented the Managing Director to say so while making the retraction. There was no attempt made by the assessee to state their case by coming forward to give a statement and producing records. The allegation of parallel invoicing has not been disproved in the manner known to law. Appeal dismissed - decided against assessee.
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