TMI Blog2016 (12) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... e the turnover of sugar is so considerable and the operations conducted in which the human element plays a significant part it would not be right to base calculations on the surmise that over filling of the tanks was being practised systematically. No doubt, during the test, the tanks were slightly over filled on nine out of ten occasions as pointed out by the Assistant Chemical Examiner. But this could be attributed to a slight failure of the human element resulting from the fact that a special operation was being conducted by the operators in the presence of a Government official. We would, however, make it clear that these observations are just incidental and are not the basis of our decision. Appeal dismissed - decided against Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leared/sold by the appellant against remaining parallel invoices. There is no confirmation from either of the recipient of the goods or the remaining parallel invoices that they had received those goods. It is settled principle of law that the clandestine clearance is a positive action and the same is required to be substantiated with the help of independent, corroborative tangible and positive corroborative evidence. In other words the guilt is required to proved beyond reasonable doubt. The documents i.e. parallel invoices recovered from the premises of the Appellant, at the best can be a goods reason to carry a suspicion that the Appellants were engaged in the evasion of duty. However, as held by the Supreme Court in the case of J.A. Nai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record to show that these invoices were actually used and goods mentioned therein were actually delivered to the recipients. Thus, the investigation has failed to establish the evidential value of these document with the help of corroborative evidence to support clandestine production and removal. Since the very basis of ascertaining average production as per power consumption is not supported by corroborative tangible and clinching evidence, such basis of average production can not be used to allege the clandestine clearance and for the purpose of demand of duty. 6. After carefully examining all the facts on record and the submissions on behalf of both the sides, we are in agreement with the findings given in the impugned order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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