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2018 (10) TMI 1548 - AT - Central ExciseClandestine removal - shortage of scrap - whole allegation is based only on ER-4 return - case of assessee is that it is a case of a bona fide clerical error which could have been verified with regard to the ER-1 returns - Held that:- There was no allegation by the Revenue that there was any such mistake or difference unearthed even in ER-1 returns. Unfortunately, there is also no finding on the appellant’s stand right from its reply to the Show Cause Notice that the appellant had furnished ER-1 returns for the year, Form-IV Register, chart reflecting purchase and usage of raw material/removal of raw material as such, etc., along with its replies to Show Cause Notice. The Revenue has not taken any supporting evidence to nail the assessee on the alleged difference in stock in ER-4 return which only points out that no further investigation was done in the interests of justice. It is the settled position of law that the allegations/assumptions howsoever strong, cannot take the place of proof - The Revenue has only harped upon the difference in closing stock of raw material, but nothing prevented the Revenue from examining the balance-sheet for the year filed with the Income Tax Department vis-à-vis the appellant’s ledger account filed therewith or the revised ER-4 return. The demand on the alleged difference cannot sustain - appeal allowed - decided in favor of appellant.
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