TMI Blog2012 (10) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... t to prove the allegation of clandestine removal or to find out any corroborative evidence viz. movement of final product from the factory, receipt of payment or any inculpatory statement etc. The charges of clandestine removal cannot be proved on conjectures and surmises – in favor of assessee - E/195/2010 - A/439/2011-WZB/C-IV(SMB) - Dated:- 17-8-2011 - Shri S.K. Gaule, J. REPRESENTED BY : Shri Prem Kumar Francis, Consultant, for the Appellant. Shri A.K. Prabhakar, SDR, for the Respondent. [Order]. Heard both sides. 2. The appellant filed this appeal against Order-in-Appeal No. YDB/150/M-III/2009 dated 12-11-2009 whereby the Commissioner (Appeals) upheld the order of the lower adjudicating authority. 3. Briefly st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11AC of the Central Excise Act. The above proposals were confirmed by the lower adjudicating authority. They challenged the same before the Commissioner (Appeals). The Commissioner (Appeals) asked them to deposit an amount equal to 50% of the duty amount which they could not pay within the time limit prescribed, accordingly, their appeal was rejected by the Commissioner (Appeals) for non-compliance of the condition of Section 35F of the Central Excise Act. They challenged the same before this Tribunal and vide Order No. A/432/2009/SMB/C-IV, dated 29-7-2009, the Tribunal remanded the case to the appellate authority for deciding the matter afresh after directing the appellant to pre-deposit a sum of Rs. 75,000/-. The learned Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landestine removal has to be established by the department by adducing cogent and tangible evidence. In support of his contention he placed reliance on the Tribunal s decision in the case of Commissioner of Central Excise, Lucknow v. Oudh Sugar Mills Ltd. - 2010 (262) E.L.T. 991 (Tri.-Del.). He also placed reliance on the Tribunal s decision in the case of Air Carrying Corp. Pvt. Ltd. v. Commissioner of Central Excise, Thane-I - 2008 (229) E.L.T. 80 (T), which was maintained by the Hon ble Bombay High Court reported in 2009 (248) E.L.T. 175 (Bom.), wherein it was held that when demand based upon statutory records then extended period of limitation cannot be invoked. 5. Shri A.K. Prabhakar, learned JDR submitted that through out the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is that they have cleared the goods without payment of duty since their goods were not excisable at that time. There contention is supported by the facts recorded in the show-cause notice that they have reflected the particulars of finished goods, inputs, in-process material and packing material in their Profit and Loss account. However, their contention that the difference arrived at was on the basis of their declaration on the goods which were in stock as on 1-4-2003 was not taken into consideration. The main contention of the department is that the appellant failed to explain the difference in the quantity of the finished goods, therefore, there is a clandestine removal and onus shift on the appellant. However, I find that no effort ..... X X X X Extracts X X X X X X X X Extracts X X X X
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