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2015 (10) TMI 2195

Evasion of duty - Clandestine removal of goods - Whether the case of clandestine removal can be held to be established on the basis of statement dated 12.09.2006 of Shri Rajesh R. Patel, Excise Executive and Authorised Signatory of the appellant - Held that:- There is no other corroborative evidence or statement given by any other person to substantiate that there was any clandestine removal on the part of the appellant. It has been rightly pointed out by the learned advocated appearing on behal .....

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of Central Excise were intimated as non-existing by a letter within a week from the date of visit. To reject the appellant's claim of no shortage of finished goods, a verification ought to have been done immediately.

Shortages were alleged to be that of chemicals when the shortage where it was not found admitted but a statement was given that the shortage will be explained later and the same was explained by the appellant during subsequent investigations. In the absence of any other .....

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tages found may be on accounting error with no clandestine intention to evade payment of duty and that he is not able to explain the shortages. It was also submitted that appellant is reversing the duty voluntarily in good faith with a scope to explain the same. 2. Appeal No. E/326/2010 has been filed by the appellant with respect to refund of ₹ 11,40,458/- paid during investigation. The said refund claim was returned to the appellant as premature as per order dated 09.09.2009 of the adjud .....

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there was no clandestine manufacture and removal. That the first appellate authority has simply brushed aside their arguments as an after thought. Learned Advocate also relied upon the final order No. A/11237/2013-WZB/AHD dated 27.09.2013 (Appeal No. E/2652/2004-SM) passed by this Bench in the case of Zenith Fibres Limited vs. CCE, Vadodara. He made the Bench go through Para 6 of this order to argue that a case of clandestine removal can not be based solely upon the statement, which can also no .....

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in good faith with a scope to explain the shortages. By a letter dated 16.09.2006 appellant, within a week s time of Panchnama, explained the department that there was no shortages as several materials are lying spread over everywhere in the factory premises, which are rejected as well as returned goods. No verification was made during investigation with respect to the claim made by the appellant. During subsequent investigation conducted, by recording statement dated 11.08.2009 of Shri S.R.B. .....

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issible. In the case relied upon by the AR, the commodity involved was two wheelers, Scooters and Mopeds, and the quantity of which was easily verifiable during stock taking. On the other hand, in the present case, the shortages were alleged to be that of chemicals when the shortage where it was not found admitted but a statement was given that the shortage will be explained later and the same was explained by the appellant during subsequent investigations. In the absence of any other independen .....

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cks could be a good ground for raising suspicion but it should be corroborated by the confessional statement of the assessee and/or other evidences that such shortages were clandestinely removed also. There is also no evidence of seizure of any goods clandestinely cleared by the appellant. Appellant has relied upon a series of judgments, one of them being of Allahabad High Court, as indicated in Para 3 above, wherein it has been repeatedly held that the shortage of finished goods by itself could .....

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