TMI Blog2016 (3) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... oval of goods is not sustainable. The allegation has been made on the basis of assumption and presumption, no statement of the appellant was ever recorded, none of the person whose statement were recorded and relied has implicated the name of the appellant - As all the evidence to alleged clandestine removal are absent from the investigation, in that circumstances, allegation of clandestine removal of goods is set aside. Reliance was placed in the case of MUSK TOBACCO (INDIA) PVT. LTD. Versus COMMR. OF C. EX., LUCKNOW [2011 (11) TMI 570 - CESTAT NEW DELHI], where it was held that In the absence of evidence, the duty on the basis of third party statement cannot be demanded from the appellant. Appeal allowed - decided in favor of appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear on the date fixed but sought adjournment, thereafter no further summons were issued to the appellant. Later on, the show cause notice was issued to the appellant to demand duty on the cigarettes recovered from M/s. Sharadha Traders without cover of invoice in the brand of Royal Black Clove along with interest and imposition of penalty on both the appellants and on transporter of the said goods alleging that the said cigarette goods have cleared by the appellant clandestinely without payment of duty. The matter was adjudicated and the impugned demand was confirmed along with interest and penalty on both the appellants were imposed. Aggrieved from the said order, the appellants are before me. 3. The ld. Counsel for the appellants submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant were recovered from one M/s. Shardha Traders but Sh. Ajay Adwani proprietor of Sharddha Traders never named the appellant that they have procured the said goods from the appellant. The statement of Sh. Samay Lal Janghel railway booking agent also did not disclose the name of the appellant. The only statement of M/s. Pankaj Logistics is disclosing the fact that they were transporting the cigarettes manufactured by the IGM Group of companies from Delhi to Raipur but did not disclose the name of the appellant. The only reason to implicate the appellant in this case is the statement of Sh. Ravi Singhal and it has been presumed by Revenue that the said goods have been manufactured by the appellant and cleared clandestinely. As the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. CEGAT, Chennai - 2010 (260) E.L.T. 511 (Madras), there is no preponderance of probability of tracing of tobacco after that is alleged to have vanished from factory of the appellant which is stated to have been controlled as above. Where about of tobacco could not be traced. This factual position has handicapped the Revenue to succeed today. In such circumstances, benefit preponderance of probability does not come to the rescue of Revenue. For the reasons aforesaid appeal is allowed. And in the case of Sh. Shrigonda Sahakari Sakhar Karkhana Ltd. Further, wherein this Tribunal has observed as under in Paras 6 7 : 6. We have considered the rival submission very carefully. The department s case is one of clandestine production and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and removed, the assessee should have procured 3,41,732.115 MTs of sugarcane. Such huge quantity could not have been procured by anyone without documentation relevant to their purchase, transport, payment and so on. No investigation worth the name has been conducted by the department in this regard. Further, as rightly pointed out by the assessee, to crush this much quantity of sugarcane the factory should have worked additionally for about 128 days, which means there will be consumption of electricity, other fuels, employment of workers and payment of wages to these workers. None of these aspects has been gone into by the department while making the allegations raised in the show cause notice. In the case of Oudh Sugar Mills Ltd. v. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Central Excise (supra). One could cite several judgments on the subject matter to show that the department has to produce substantial and reliable evidence to prove the case of clandestine production and removal which the department has failed miserably in this case. 7. In the light of the above discussions, we are of the view that the department has failed miserably in proving the case of clandestine production and removal. Accordingly, we set aside the impugned order dated 9-4-2011 passed by the learned Commissioner of Customs and Central Excise, Aurangabad and allow the appeals filed by the parties. In view of the above discussion, I set aside the impugned order and allow the appeal with consequential relief, if any. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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