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2018 (11) TMI 1016 - AT - Central ExciseClandestine removal - allegation mainly based upon the electricity consumption, the project report furnished to bank for procurement of loan, capacity of machine installed in the factory, statements of Director as also the other workers of the factory - penalty. Held that:- Findings of clandestine removal are based upon the calculations, which in turn are based upon the working of machines and consumption of electricity. Such findings which are based upon the consumption of electricity have been held to be as no sustainable for arriving at the findings of clandestine removal - The observations of the Adjudicating Authority is that the buyers reflected in some of the invoices were found to be non-existing. We find that same cannot be adopted as a reason for arriving at findings of clandestine removal inasmuch as such sales were effected on the basis of Central Excise invoices. It is well settled law that the onus to prove the clandestine removal is upon the Revenue and is required to be discharged by production of sufficient and positive evidence - In the present case there is no evidence at all produced by the Revenue to show that the appellant had clandestinely manufactured and cleared their final product - demand not sustainable. Appeal allowed - decided in favor of appellant.
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