TMI Blog2016 (6) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... ontains no evidence of duty free clearance of samples during the impugned period. As regards the contention of the ld. DR that in their statements the officials of the appellant admitted that they cleared samples duty free during the period October 1994 to June, 1997, suffice to say that even if that was the case, it does not conclusively establish that there were clearances of samples duty free during impugned period which is November 1995 to May, 1997 inasmuch as the statements will not be wrong if the samples were cleared say in the period Oct., 1994 to Oct., 1995 because this period is contained in the period October 1994 to June, 1997. Assumption has been made that the appellant cleared samples duty free during the impugned period a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed. 2. The appellant has contended that :- 1) It had asserted all along that no samples were cleared without payment of duty during the period November, 1995 to May, 1997. 2) It never admitted that it had cleared any samples duty free during the impugned period and vide its letter dated 13.07.2001 it only stated that samples during the impugned period might have been cleared from duty paid stock of goods and it was also submitted that, that may have been the main reason for not keeping records of samples. Subsequently, it clarified after ascertaining from the ledgers that no samples were cleared duty free during the impugned period. 3) It is not tenable on the part of Revenue to estimate clearance of samples during the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom duty paid stock and that was the reason possibly for absence of any specific records about clearance of samples. We find that the SCN contains no evidence of duty free clearance of samples during the impugned period. As regards the contention of the ld. DR that in their statements the officials of the appellant admitted that they cleared samples duty free during the period October 1994 to June, 1997, suffice to say that even if that was the case, it does not conclusively establish that there were clearances of samples duty free during impugned period which is November 1995 to May, 1997 inasmuch as the statements will not be wrong if the samples were cleared say in the period Oct., 1994 to Oct., 1995 because this period is contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue. One has to keep in mind that, though being the main ingredient, betel-nut is not the only raw material which is used in manufacture of Pan Masala. That apart, since the investigation has been carried only at the transporters end, no presumption could be drawn with regard to manufacture and removal of the final product. Presumptions and assumptions cannot take place of positive legal evidence, which are required for proving the charge. Even if, it is assumed that some raw materials were received at the factory of the respondent during the said period, the same cannot become conclusive proof of production and clandestine sale to different parties. Due to lack of positive evidence, benefit of doubt will always go in favour of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be imposable upon the notice No.1. Further it appears that by having withheld the information regarding removal of trade samples with intention to evade payment of duty the notice No.1 have rendered themselves liable to be penalized under section 11 AC of the Act. In the case of Uniworth Textiles Ltd vs. Commissioner of Central Excise Raipur 2013 (288) guilty 161 (SC) it was held that mere non-payment of duties is not equivalent to collusion or willful misstatement or suppression of facts, otherwise there would be no situation for which ordinary limitation period would apply. Inadvertent non-payment is to be met within the normal limitation period and the burden is on Revenue to prove allegations of willful misstatement. The onus is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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