TMI Blog2008 (9) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 15-9-2008 - Deepak Gupta and V.K. Ahuja, JJ. Shri Sandeep Sharma, ASGI, for the Petitioner. Shri Bimal Gupta, Advocate, for the Respondent. [Order per : Deepak Gupta, J.]. - This Excise Reference was admitted on the following question of law :- Whether in the facts and circumstances of the case, the Custom, Excise and Gold (Control) Appellate Tribunal was right in applying the principles laid down in various decisions and in holding that the burden of proof was not shifted on the assessee? 2. The brief facts giving rise to this petition are that the H.P. Police seized 822 cylinders from the godowns of respondent No. 1-Company. During the investigation, the police seized various records from Taruwala Municipal Barri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture of illicit cylinders. He stated that these cylinders were manufactured at night and that no excise duty was paid on the same. According to him, workers were paid in cash for working during this period. He admitted that he was the President of the Labour Union but later his services were terminated by the Company. Sarwan Singh and Darshan Pal, the two drivers admitted that they had driven the trucks and crossed the barriers on the relevant date. According to them they always carried the relevant documents but could not say whether these documents were correct or not. These witnesses also stated that many times cylinders were unloaded at many places out side Himachal Pradesh. A number of other witnesses including the employees of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefarious activities have not only played with the Revenue, they have also played with the lives of human beings by putting in the market explosive material which otherwise was spurious. In view of the foregoing, I unhesitatingly hold that the Noticees had engaged themselves in the manufacture and clandestine removal of the goods thereby causing loss to the exchequer. They have, therefore, rendered themselves liable to penal section apart from the payment of duty demanded in the show cause notice. Therefore, I pass the following :" 6. The respondent-Company filed an appeal before the Custom, Excise Gold (Control) Appellate Tribunal (CEGAT). The Tribunal accepted the appeal. The main reason which weighed with the Tribunal was that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent that many trips were made by the trucks of the respondent-company and on these occasion, the trucks went through the barriers. There is no entry of these trips in the record of the respondent-company. The best evidence was available with the respondent-company to show what was being carried in these trucks on these occasions when they crossed the barriers. There is no explanation by the respondent-company in this regard. It has not produced any record to show what was being carried in the trucks. 8. Admittedly, the entries in the barriers clearly show that on these trips either scrap or empty cylinders or LPG cylinders were being carried. These entries clearly show that this material was being carried in the trucks. There is a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this petition. However, we are clearly of the view that the approach of the learned Tribunal was wrong and against the law. Once the department proves that something illegal had been done by the manufacturer which prima facie shows that illegal activities were being carried, the burden would shift to the manufacturer. It was impossible for the department to prove how many cylinders were being carried in the trucks. However, if the department proves that the trucks crossed the barriers carrying some cylinders for which no record was maintained in the factory nor any excise duty was paid then the presumption can be drawn that the trucks were carrying cylinders as per the capacity of the trucks. The approach of the Tribunal that it was for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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