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TMI Blog2011 (2) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Customs, Excise & Service Tax Appellate Tribunal, New Delhi dated 27.10.2009, Annexure A-6, raising following substantial questions of law:- "Whether for any fraudulent or clandestine removal/transaction where the players hatch the conspiracy and execute well crafted modus operandi, car the exchequer be made to bear the loss of revenue especially when the modus operandi had been admitted by the accused persons?" 3. Show Cause Notice was issued to M/s Paradise Steel Rolling Mills asking it to explain as to why amount of Rs.1,45,000/- cash seized on account of sale proceeds of goods removed clandestinely and sold to the respondent without payment of central excise duty be not confiscated and penalty imposed. It was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wani Kumar are independent identities and filing Income Tax return. No allegation has been leveled in the Show Cause notice for the recovery of the duty on the goods cleared by M/s Paradise Steel Rolling Mills and no evidence has been collected in this regard to prove that such goods were cleared by them from their factory. The charges, therefore, seem to be leveled only on presumption and assumption. The penalty in the Show Cause Notice on the Appellants No.2 i.e. M/s Patran Pipes Pvt. Ltd., Patran has been proposed under Rule 25 but the same has been confirmed under Rule 26 of the Central Excise Rules, 1944, which is not legally correct. The Orderin- Original therefore, being not legal, proper and correct, is set aside." 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ird party. Cogent evidence showing that goods manufactured were not recorded in the books of M/s Paradise Steel have escaped payment of duty by clandestine removal has not come to record except mere suspicious and assumptions. Seizure of Rs.1,45,000/- being the only cause for the proceeding, in absence of evidence showing the seized money has direct nexus with clandestine removal there cannot be any assumption, presumption, surmise or suspicion to hold against the appellants since suspicion is not substitute of proof. When Sh. Naresh Joshi was never put to question as to the deal between M/s Patran Pipes and M/s Paradise Steel, nor also as to seizure of Rs.1,45,000/- nothing can be said that such sum was due to M/s Paradise Steel from M/s A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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