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2019 (11) TMI 308 - HC - Central ExciseDiscard of documents relied upon by the Enforcement Authorities - Clandestine removal - Gutkha - no material evidence found in support of allegation - Whether CESTAT had committed an error in discarding the documents relied upon by the Enforcement Authorities and in that regard whether such decision is contrary to the provisions as contained in Section 36(B) of the Act? HELD THAT:- It is evident that the Tribunal has found that the Commissioner has found clandestine clearance of gutkha by the assessee involving duty of 4.60 crores on the basis of copies of railway receipts as well as the material retrieved from the computer seized from the premises of M/s. Dwaraka Mai Associates viz., the dealer of the assessee - From perusal of the record maintained by the dealer of the assessee, the Commissioner has held that the daily sales of Hira brand gutkha did not match with the invoices issued for the sale of gutkha by the assessee. There has to be clinching evidence in the matter of purchase of raw material, use of electricity, removal of final product and its sale in order to prove that the material was removed in a clandestine manner with a view to evade duty. The aforesaid material is not available on record - The Revenue has failed to produce any cogent evidence in respect of the aforesaid aspect of the matter to prove the allegation against the assessee. The tribunal has, therefore, rightly reversed the order passed by the Commissioner and has allowed the appeals of the assessee. It is equally well settled legal proposition that this court in an appeal under section 35G of the Act cannot re-appreciate the evidence unless and until the evidence recorded by the tribunal are shown to be perverse. Learned counsel for Revenue was unable to point out as to which evidence adduced by the revenue has been discarded by the Tribunal. The question of law, in fact, framed by this Court does not arise for consideration in the fact situation of the case as entire evidence adduced by Revenue has been considered by the Tribunal - Appeal dismissed - decided against appellant.
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