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2016 (10) TMI 477 - CESTAT CHANDIGARH

2016 (10) TMI 477 - CESTAT CHANDIGARH - TMI - SSI exemption - dummy units - clubbing of clearances - modvat/cenvat credit - ERW pipes - reference made to the decision in the case of M/s. Nova Industries (P) Ltd. Versus CCE- Chandigarh [2015 (5) TMI 99 - CESTAT NEW DELHI] - Held that: - the facts are similar to the facts in the case of Nova Industries Pvt.Ltd. and on the analysis of that decision, it is held that all the units are having separate machinery, separate registration number and dealin .....

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sue answered in favor of respondent. - Clandestine removal of goods - Held that: - in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of : (a) raw materials, in excess of that contained as per the statutory records; (b) i .....

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on payment of duty; (g) statements of buyers with some details of illicit manufacture and clearance; (h) proof of actual transportation of goods, cleared without payment of duty; (i) links between the documents recovered during the search and activities being carried on in the factory of production; etc. - Any of the charges mentioned above not proved, hence, the charge of clandestine removal of goods is not sustainable against the respondents. - The quantity and value of clearance in .....

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l, Member (Judicial) and Mr. V. Padmanabhan, Member (Technical) Appellant By : Shri G.M.Sharma, AR Respondent By : Shri Kamaljeet Singh, Advocate ORDER Per Ashok Jindal: These appeals have been filed by the Revenue against the impugned order dropping charges levelled in the show cause notices except confirmation of demand of ₹ 17,79,094/- alongwith interest and equivalent amount of penalty on M/s.National Conduit Pipes and imposing penalty on Shri Sham Lal. 2. The facts of the case are tha .....

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rs Shri Sham Lal and Shri Ramesh Kumar who are real brothers by relation. However, on papers these units have been shown in the name of different members of their family for the purpose of fraudulently availing SSI exemption for each of these units by manipulating the value of clearances for each these units well below exemption limit. The intelligence further gathered that these units were engaged in the clandestine clearance of ERW pipes without payment of duty which were managed by these two .....

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ial and administrative control over these units and the clearance of the value of excisable goods manufactured by these units were also manipulated by them below the exemption limit of ₹ 3 crore in respect of these manufacturing units. Therefore, they are availing SSI exemption and they were clearing the goods clandestinely under the cover of invoices of M/sNational Steel. In these sets of facts, the show cause notice was issued to the manufacturing unit, their partners/directors and trans .....

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der, the Revenue is in appeal before us. 3. Learned AR submits that the Commissioner has not considered the fact that the allegation in the show cause notice are not based on minor monetary accommodation of temporary nature or simply relationship of the directors but it is on the basis of creation of new front companies, arrangement of funds for the same, financial flow back from one company to another, common staff, common office premises and common management are some crucial evidences which h .....

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y concluded that various units have legally separate entities, She overlooked the fact that all the manufacturing units commonly handled and controlled by two persons only through themselves or through their family members. He also relied on the decision of the Apex Court in the case of Calcutta Chromotype Ltd.-1998 (99) 2002 (SC) to lift the corporate veil. He further submits the clearances of the manufacturing units should be clubbed for availment of the benefits of SSI exemption especially wh .....

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nflow in the account of parties and the evidences collected show that these units were indulging in clandestine clearances and cash so collected was being shown as deposits made by buyers, who have denied having purchased the goods. He also relied on the decision of the Tribunal in the case of British Scaffolidng India Pvt.Ltd.-2014 (313) ELT 87 (Tri.-DeI.). 5. He further submits that the respondents are a group of industries and controlled over the management, staff, sale and purchase of finish .....

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aken from the financial institutions also corroborates the department's allegation of clubbing of clearances. In view of the above submissions, it is prayed that the impugned orders be set aside quo dropping the charges. 6. On the other hand, learned Counsel appearing for the respondents submitted that the Commissioner has given a concrete finding in para 144 of the impugned order and the said finding has not been rebutted by the department which as under:- All the units are independent sepa .....

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purchased the machinery owned by them and also all the raw materials required for manufacturing from their own resources; All the salaries, wages are paid by the all the units from their own sources of finance; All the units have their own Sales Tax and Income Tax Registration; All the units had paid their own electricity Bills; All the units have separate electricity and telephone connections. 7. He further submits that the Commissioner herself has visited the unit of the respondents and satis .....

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ctors (i) Sh. Ramesh Kumar, (ii) Smt. Aruna Garg w/o Sh. Sham Lal. 3. M/s R.M Steels Pvt. Ltd. (RSML) Directors (i) Sh. Manoj Kumar S/o She Mohinder pal who is brother of Sh. Sham lal & Sh. Ramesh Kumar. (ii) Smt. Karuna Garg W/o Sh. Ramesh Kumar (RK) 4. M/s R.S. Steels (RSI) Partners (i) Sh. Vivek Garg S/o Shu Sham Lal (ii) Smt. Aruna Garg W/o Sh. Sham Lal 5. M/s Vivek Steel Tubes (VST) Partners (i) Sh. Ramesh Kumar (ii) Sh. Lakhpat Rai brother of Sh. Sham Lal & Ramesh Kumar (Shown on p .....

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ompany or firm is the dummy of the other. The same view has been taken in the following cases: 1 . J. YashodaVs. Shobha Rani, 2007 (212) ELT 458 (SC) 2. Nova Industries Ltd. Vs. CCE, Chandigarh -Final order No. A/50917-50922/2015-EX(DB) dt. 18.02.2015 3. Bullows India Pvt.Ltd. Vs. CCE, 2012 (284) ELT 584 (Tribunal) 4. Ennar Cements Pvt. Ltd. Vs. CC, 2013 (292) ELT 245 (Trib) 5. Geeta Valves & Engineers (P) Ltd. Vs. CCE,1996 (87) ELT 672 (CEGAT) 6. Spring Fresh Drinks Vs. CCE, 1991 (54) ELT 3 .....

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LT 187 (Tribunal) 15. Alpha Togo ltd. Vs. CCE, 1994 (71) ELT 689 (Trib) 16. Shree Packaging Corpn.Vs.CCE, 1987) ELT 17. Supreme Washers (P) ltd. Vs, CCE,Pune, 2003 (151) ELT 14 (S.C.) 18. Sapthagirj Cements Pvt. Ltd. Vs, CCE, 2005 (183) ELT 385 (Trib Bang.) 19. Arya Fibres Pvt. Ltd. Vs. CCE, 2014 (311) ELT 529 (Tri.Ahmd.) 20. Gian Castings Pvt. Ltd. Vs. CCE, 2015 (319) ELT 339 (Tri. Delhi) 21. Continental Cement Co. Vs. IJOI, 2014 (309) ELT 411 (All.) 22. CCE Vs. Renny Steel Castings P. Ltd., 20 .....

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M/s.National Conduit Pipes. Thus, the clearances of various firms are not liable to be clubbed together. 11. He further submits that the partners/director of the various firms are related to each other. However, all of them are "major" i.e. above 18 years of age, are well educated and therefore, fully competent to do their independent business. He further submits that Smt.Karuna Garg W/o of Shri Ramesh Kumar is M.A.,B.Ed. While Smt. Aruna Garg W/o of Shri Sham Lal is M.A. There is no b .....

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of land, have separate central excise, sales tax and income tax registration and have their own work force. Each unit has a separate telephoone and electricity connection. Although Shri Sham Lal and Shri Ramesh Kumar are actively looking after the affairs of some of the firms/companies, it does not follow that the firms/companies do not have any separate existence. Legally also there is no bar against a person from becoming director/partner in more than one company/firm. It is not alleged that t .....

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further find that though the partners/Directors of various firms are related to each other but there is no bar against relatives or persons including wife and children from having independent business interest and it cannot be held that by having partners/ directors related to each other they are one and the firms created with different partners are to be treated one and the clearances are to be clubbed. Thus the allegation that Shri Sham lal and Shri Ramesh Kumar having control over the affairs .....

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firm/units have been transferring substantial amount to M/S G.C. Spintex Pvt. Ltd. Samana to be utilized towards the financial requirements of G.C. Spintex and unit cannot be treated as having no separate entity. I find from records that this transferring of amount by other units is on principal to principal basis and it cannot be held that they have mutuality of interest in the units of each other and they are related persons." 12. He further submits that there is no inter-unit transactio .....

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(Tri.) and Poly Printers- 2002 (139) ELT 295 (Tri.). 13. He further submits that the learned AR relied on the decision of the Tribunal in the case of British Scaffolding India Pvt.Ltd. (supra). The case of the case of the said case are somehow are different from the present case, the same cannot be relied on. He further submits tht in the case of Supreme Washers (P) Ltd.-2003 (151) ELT 14 (SC), the Apex Court has held that clearances of two or more units can be clubbed for the purpose of SSI ex .....

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o be clubbed. 14. He also relied on the CBEC circular No.6/92 dated 29.5.1992 wherein the Board has issued the direction that limited companies whether the public or private are separate entities, distinct from the shareholders composing it and hence each limited company is a manufacturer by itself and will be entitled to a separate exemption limit. The demand on account of clandestine removal of the goods in not sustainable. 15. With regard to the allegation of clandestine clearance, the demand .....

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herefore, the demand on account of clandestine removal of the goods is not sustainable. 16. Regarding photocopies of original documents in the absence of original documents, he relied on the decisions of the Apex Court in the case of J.Yashoda Vs. K.Shobha Rain-2007 (212) ELT 458 (SC), he submits that the demand of duty is based on conjectures and surmise and there is no corroborative evidence on record to support the allegation of clandestine manufacture. He also placed reliance on the decision .....

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ndustrie can be clubbed together and the benefit of SSI exemption can be denied (ii) Whether the demand can be confirmed on the basis of allegation of clandestine manufacture and clearance of excisable goods by the respondents or not. Issue No.1 20. To deal with the issue of clubbing of clearances, we find that the organisational structure of all six units is as under: Organization Structure (i) M/s National Conduit Pipes (NCI)), Partners (i) Sh. Sham Lal (SL) (ii) Smt. Karuna Garg, W/o Shu Rame .....

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her of Sh. Sham Lal & Ramesh Kumar (Shown on paper to be under lease to M/s NL Since 01.04.1999) 6. M/s RX. Industries (RKI) Partners (i) Sh. Sham Lal (ii) Sh. Ramesh Kumar (iii) Smt. Sita Devi W/o Sh. Mahinder Pal, brother of Sh. Sham lal & Sh. Ramesh Kumar (shown on paper to be lessee of M/s VST earlier and then lessee of M/s NI) 21. On the basis of above organisational structure, it has been alleged that Shri Sham Lal and Shri Ramesh Kumar have either been shown on paper as directors .....

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panies and both the units are having their units separately located with a distance in the same industrial area but there is no common gate for both the companies. Further, both the companies are registered with Income-tax Department, Sales-tax department, Central Excise department, Director of Industries, etc. As separate units. The registration of Central Excise was granted to both the units although the documents were signed by Shri D.V.Khanna for filing returns or correspondence with the dep .....

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th the Directorate of Industries, they have their own investment of capital, machinery and work force; They have their own financial sources and credit facilities; All units have separate factories and manufacturing facilities; All the units have purchased the machinery owned by them and also all the raw materials required for manufacturing from their own resources; All the salaries, wages are paid by the all the units from their own sources of finance; All the units have their own Sales Tax and .....

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ot the directors in all the four respondents company. We have seen that two directors are not related to the directors of other companies. From that, it cannot be said that these units have been managed by Shri Ramesh Kumar and Shri Sham Lal. We have seen that directors of the two companies have related to the other, it does not mea that they are only one and the other companies are dummy as held by This Trbunal in the case of Nova Industries Pvt.Ltd, (supra) wherein this Tribunal has observed a .....

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ary of employee of M/s Nova was paid from M/s, DSA s and commission of employees of M/s, NOVA was paid from M/s DSA's account. The annual incentives were given to the dealers on the basis of combined sales of both the units. Moreover, the shareholding in both the units by the Directors is almost common. Sometimes, money was given to each other but nothing was shown in the balance sheet Therefore, clearance of both the units are to be clubbed as the same are managed by Shri D.V. Khanna, Manag .....

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tral Excise was granted to both the units although the documents were signed by Shri D.V. Khanna for filing returns or correspondence with the department but they were never objected to. We also find that in this case although both the companies are having different brand names of their product such as NOVA/DSA. The units are having their own separate machinery having manufacturing the goods and same have been cleared on payment of duty by availing SSI exemption of both the units separately. The .....

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Cc, reported in 2012 (284) E.L.T. 584 (T) (supra) wherein this Tribunal has observed as under: We find that in the present case the issue is whether the appellants are entitled for the benefit of Notification 175/86C.E. and subsequently Notification therefore, the ratio of the above decision of the Hon'ble Gujarat High Court is fully applicable on the facts of the present case. The Hon'ble High Court held that the Revenue has to establish that there was mutuality of interest or financial .....

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rt, the impugned order is set aside and the appeals are allowed. The cross objections filed by the Revenue are disposed off accordingly. 18. Further, we find that, in the case of CCE v, Sharad Industries reported in 2013 (294) E.L.T. 561 (T) this Tribunal again observed as under: We, after appreciating the submissions of both the sides find that there is not much dispute on factual position. It is not the Revenue's case that two units owned by Smt. Kamlesh Gupta and her husband Shri Avdesh K .....

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s as one, Admittedly, husband and wife are entitled to their own business and if the husband is looking after the business of the wife that will not make the unit owned by the wife as a dummy unit. The prime requirement, for clubbing the clearance of two units is not having complete independent machinery and infrastructure to manufacture the goods. If both the units are complete by itself, capable of manufacturing the goods without any help from the other unit, it has to be held that both the un .....

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of India - 1993 (66) ELT. 375 (Raj.). Similarly, in the case of M/s. Electro Mechanical Engg. Corporation v. CCE, Jaipur - 2003 (152) E.L.T 194 (TH.), Girish Electricals Industries v. Cc, Mumbai - 2004 (167) E.L.T. 299 (Tri,) it was held evidence of common office premises, common staff and Common maintenance of records, etc. cannot be held to be sufficient to club the clearances of the units, who have different registration in al/ the departments and in the absence of any financial flow back. 1 .....

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hat is the case, the investigation ought to have decided the real clearances of each unit and demanded the duty accordingly in respect of each unit. However, in the present case, the duty has been demanded collectively from both the units. If the Department feels that out of the two units, one unit is dummy, teen the dummy unit should have been identified In that case, the value of the clearance of dummy unit could have been clubbed with the clearance of the real unit and duty demanded. This has .....

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e said Circular, the board had, inter alia, clarified that the limited companies, whether public or private, are separate entities distinct from the shareholders composing it and hence, each limited company is a manufacturer by itself and would be entitled to a separate exemption limit. It is not in dispute that M/s. Ennar Cements and M/s, Seshashaila Cements are private limited companies registered separately under the Companies Act and each of them have separate factories. Taking various facts .....

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#39;s company is separate. In respect of the Board's Circular, the clearances of the limited companies cannot be clubbed. The Commissioner has clubbed it and demanded duty collectively. This is not legal and correct and it is contrary to the Board's Circular." We further find that in the case of Alpha Toyo Ltd. v. CCE, New Delhi reported in 1994 (71) ELT. 689 (Tribunal) this Tribunal has observed as under : SSI exemption - Clubbing of clearances common Managerial Control, a few comm .....

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75 (Raj.) Exemption - SSI Exemption - Clubbing of clearances - Two units situated at same premises, manufacturing similar product, having some common management, office and labour and common electric connection - One unit owned by father-in-law and the other by daughter-in-law and work of both units looked after by her husband - In absence of evidence of common finding and financial flow back, two units not treatable as one and their clearances not clubbable Notification No. 175/86-CE dated 1-3- .....

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rendered being paid for in terms of agreement between them - Clubbing of clearances of units not justified in absence of conclusive evidence of financial flow back among them - Notification No. 83/83, dated 1-3-1983, No. 85/85, dated 17-3-1985 and No. 175/86, dated 1-3-1986. 23. We also find that the activity of the appellants were in the knowledge of the department as they were registered with the Central Excise Department and units are located in the same range, therefore, extended period of .....

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of the clearance of M/s DSA with M/s, NOVA is not sustainable and the same is set aside. 25. We find that learned AR relied on the decision of the Apex Court in the case of Modi Alkalies & Chemicals Ltd. In the said case, the facts were as under: Respondent no, 1 - M/s Modi A/ka/ies & Chemicals Ltd, (in short 'MACL') is engaged in the manufacture of caustic soda of which Hydrogen gas is a by-product. The Central Excise Authorities noticed that in reality MACL was engaged in the m .....

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e front companies were in vicinity of the factory of MACL. What in reality happened was that through pipelines Hydrogen gas was sent to the three front companies for compressing and bottling the gas. The sole object was to avail benefit of exemption given to small scale industries under the Central Excise Notification No. 1/93, dated 28-2-1993 and thereby evade payment of central excise duty. With a view to unravel the truth Director General of Anti-Evasion (for short DGAE') searched the fac .....

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s had been supplied only by MACL and the total finance was provided by MACL as unsecured loans or had been arranged by finance companies whose whereabouts were not even known to the Directors of the three front companies. Marketing of the products was done by one Ritesh Beotra, a so-called Director of SCGCPL who was working as Deputy Manager (Marketing) in M/s Modi Gas & Chemicals Sales Depot at Delhi. He was marketing various gases manufactured by a Modi group concern and was answerable as .....

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above the invoice prices of Hydrogen gas Supplied by three companies. It was noted that while front companies. It was noted that while front companies were being supplied gas by MACL @ 0.50 per unit, till August 1996 the same gas was sold by the three companies @ ₹ 5/- per unit. Keeping in view all these factors the authorities were of the view that MACL had created the three companies with the fraudulent intention to avail benefit of exemption granted under Central Excise Notification No. .....

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the facts as under : 2.1 Briefly stated the facts are that the Central Excise officers intercepted a truck No. GRW - 2645 on 7-4-88 at Umbergaon Sanjan Raod. The drive of the truck produced a Challan No. 862, dated 7-4-88 for M.S. Scrap issued by M/s. Heemanshu Auto Ltd. The drive, however, did not produce and Central Excise gate ass. In his statement, the Excise clerk of Heemanshu Traders deposed that as per oral instruction of Shri Girisbhai Shah, he prepared a challan for dispatch of 12.285 .....

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stries revealed that all the partners and/or Directors are members of the Shah family and they had mutual interest in the business of each other and that Heemanshu traders was controlling the overall activities of manufacture and sales of these unites. The Department was of the view that Heemanshu Traders had by recourse to fraud, wilful mis-statement and suppression of facts evaded payment of duty in respect of 12285 Kgs. of M.S. Scrap seized from the Truck, did not account for the day to day p .....

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ished products to each other units, made cash flow to each other units for their administration and that the aggregate value of clearance exceeded the exemption limit of ₹ 1.5 crores in terms of Notification No, 175/85-CE. (earlier Notification No. 83/83, dated 1-3-83 and 85/85, dated 17-3-85) and, therefore, were not entitled to exemption as SSI unit. The duty of IRS, 24,31,502 was demanded under show cause notice dated 410-1988 for the period from 1985 to 1987-88 besides proposing confis .....

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on higher price in the open market. There is no such allegation in this case. 29. We have seen that the decisions in all the case/relied on by the learned AR the facts are somehow different from the case in hand before us as observed in above paragraphs. Therefore, the said decisions are not applicable to the facts of this case. 30. We take note of the fact that in this case, the facts somehow are similar to the facts in the case of Nova Industries Pvt.Ltd. (supra) and on the analysis of that de .....

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all the units cannot be clubbed together and the respondents are entitled to the benefit of SSI exemption from time to time. Therefore, this issue is answered in favour of the respondents. Issue No.2 31. The demand is on the basis of clandestine clearance, we have seen that the demands were raised on the basis of data collected from ICC of Punjab Gov. and it has been alleged that the sales were being effected from the manufacturing units through three trading firms. We have seen that Sales tax a .....

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as been given and the demand was sought to be distributed in all four respondents manufacturers equally which is against the judicial discipline. Further, as no corroborative evidence to support the allegation of clandestine manufacture, therefore, in the light of the decision of the Arya Fibres Pvt.Ltd. (supra), wherein this Tribunal has observed as under: 40. After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and th .....

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actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) discovery of such finished goods outside the factory; (d) instances of sale of such goods to identified parties; (e) receipt of sale proceeds, whether by cheque or by cash, of such goods by the manufacturers or persons authorized by him; (f) use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured and validly cleared on payment of du .....

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