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2018 (11) TMI 1454 - CESTAT NEW DELHIClandestine removal - Cosmetics - relied upon documents - whole case of Revenue is based on the kacchi parchi/loose slips, recovered from ZMPL - Held that:- In view of the said Khacchi parchi/ loose slips not made RUD, the whole case of clandestine removal falls for want of sufficient evidence. There is no enquiry made with respect to the manufacturing capacity and the alleged clandestine removal - further there is no enquiry made with respect to receipt of sufficient packing material although the supplier of packing materials – Talman Containers was located at the same plot where JI is situated. Revenue has failed to take notice of records of production maintained mandatorily under the provisions of Drugs and Cosmetics Act, 1940. Further there is no evidence of transport of such goods alleged to be clandestinely removed, nor the evidence of receipt of inputs/raw materials for manufacture of such alleged finished goods cleared clandestinely - ZMPL being a trading concern have not committed any illegality in dispatching goods on the basis of the delivery challan. We further find that the estimation of turnover by Revenue on the basis of MRP is erroneous. For the purpose of SSI the actual transaction value of the clearances is relevant. It is only for the purpose of calculation of duty, that MRP is taken as base and abatement allowed as notified - the mistake of fact committed by the Ld. Commissioner in the impugned order by treating the recovery of Kacchi parchi from possession of Mr Ankit Valecha, whereas it is evident from the show cause notice and the punchnama that the said Kacchi parchi were recovered from Mr Sunil Valecha, Director of ZMPL. The impugned order is unsustainable for the lack of sufficient evidence and mistake of fact - appeal allowed - decided in favor of appellant.
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