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2018 (10) TMI 967 - AT - Central ExciseClandestine manufacture and removal - tread rubber - whether the Department has reasonably discharged its burden of proof on the allegation made by them on the appellants that they have clandestinely manufactured and cleared tread rubber without payment of duty? Held that:- The allegation of the department is that both the appellant companies, i.e. M/s. TRPL & M/s. TTRPL, have resorted to clandestine removals, the duty was confirmed jointly on both the companies. There is no mention of the amount of duty/penalty recoverable from each of the appellant companies although the department does not dispute the independent existence of both the appellant companies. It was submitted by Ld. AR that most of the finished goods came into existence at the premises of M/s. TTRPL but majority of the clandestine clearances were effected using the invoices of M/s. TRPL. However, demand has not been confirmed against any particular company, though the clearances were sought to be clubbed - also, Department does not dispute the distinct identity of both M/s TRPL & M/s TTRPL. In this case it is a recognized fact that both units are existing and paying duty separately. In such a situation, the legality of demand of duty from both units, becomes questionable. The confirmation of duty on both the units not only leads to inference that both the units exist differently but would also pose difficulties in execution of the order. It is not clear as to how much amount is to be recovered from which unit. Therefore, the Department needs to have a clarity with reference to the demand i.e. the so-called demand needs to be confirmed against a particular firm. In the absence of the same, this Bench is handicapped to conclude on the merits of the case. In the interest of justice, matter should go back to the Ld. Commissioner for arriving at a categorical conclusion as to on whom the demand needs to be confirmed, properly weighing the evidence available on record - appeal allowed by way of remand.
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