TMI Blog2012 (5) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Sudhir Malhotra, Advocate for the Respondent Per Archana Wadhwa: Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal. I have heard Shri Ashwini Jain, learned AR appearing for the Revenue and Shri Sudhir Malhotra, learned advocate appearing for the respondent. 2. As per facts on record the respondents are engaged in the manufacture of non-alloy steel ingots. Their factory was visited by the Central Excise officer on 3.9.2001, who conducted stock verification and found certain shortages in the inputs and excess in the final products. However, a separate show cause notice stand issued for the same which is not the subject matter of present appeals. 3.. It is seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Salt Act, 1944 and not Xerox copy which can be tampered with. This view of the Tribunal clearly signify that term facsmile copy as specified in Section 36B (1)(b) of the Act does not mean xerox copy as there always scope of tampering with the Xerox copy. It, therefore, has to be proved that the copy available is exact copy of the original document before any cognizance of such copy is taken for any legal matter. Thus, there is strength in the argument of the appellants that the photocopies of sale invoices cannot be made sole basis to allege clandestine removal. And the findings of the adjudicating authority regarding the evidentiary value of the said copies of invoices in the instant case in terms of Section 36B(1)(b) does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal and the same have not been manipulated as contended by the appellants. Therefore, the appellants have rationale in contending that such allegation cannot be on the basis of the photocopies of sale invoices even though the said copies bear the signatures of their representatives and that the burden is on the department to prove clandestine removal of excisable goods. It is well settled that initial burden always rests on the Revenue to prove the clandestine manufacture and thereafter removal of the goods by the assessee. This burden has to be discharged by adducing some cogent and tangible evidence. In the instant case, such evidence is lacking. It is conclusive that as there is no admission by the appellants no.1 and there is also no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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