TMI Blog2015 (4) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... filed before us, lead us to conclude that the final product of the appellant being a very fragile and sensitive, results in lot of wastage, for which the appellants have also maintained proper records. The wastage arises at various stages ignoring the set of final cutting of the glass into proper shape and sizes resulting in emergence of cullets i.e. the resultant waste. The said cullets are never cleared by the appellant and are reused in the furnace for the manufacture of their final product, for which proper records are again maintained. Revenue's allegation of clandestine manufacture and clearance are based upon mainly the installed capacity as disclosed by one of the deponent employee, readwith the entries made in various recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iveni Glass Ltd. 2. After hearing Shri B.L. Narasimhan, learned Advocate for the appellants and Shri Pramod Kumar, learned Jt. CDR for the Revenue, we find that the appellant is engaged in the manufacture of sheet glass of various sizes and shapes. The appellant's factory was visited by the Central Excise officers on 16/07/1994 and a truck was found loaded with the sheet glass, in a ready to move condition. The goods loaded in the truck were not found to be entered in the RG-1 register and no Central Excise invoice was found to have been issued. Revenue by entertaining a view that the appellant intended to clear the said goods without payment of duty conducted further checks and verifications. The records maintained by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree employees during the course of investigations and all the three gave different unit of capacity and production. The Revenue picked up the maximum stated production by one of the employees and by ignoring the stated production by other deponents, calculated the theoretical production, which the appellant would have achieved. We find that the appellant had also mentioned their installed capacity in the balance sheet as also had declared the same to the Directorate of Industries. Instead of adopting the said declared installed capacity, the Revenue's approach to pick up the maximum installed capacity, as revealed by one of the employees Mr. Sinha, is not in accordance with the principles of adjudication. We further note that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, by catina of judgment that the allegations of clandestine removal cannot be upheld on the basis of surmises and conjunctures and are required to be established by production of positive and tangible evidence. In the present case, we do not even find, prima facie, preponderance of probabilities to conclude the allegations of clandestine removal against the assessee. 7. Apart from prima facie holding in favour of the appellant on merits, we also take into consideration the appellant's plea of financial hardship. They have been declared a sick company by the BIFR vide their order dated 04/03/10 and, as such, the appellants reliance on the decision of Hon'ble Supreme Court in the case of Sagarika Acoustronics Pvt. Ltd. vs. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X
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