TMI Blog2017 (11) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... stinely removed goods, is required to be produced on record. In the absence of the same, the appellate authority has rightly concluded in favor of the assessee - appeal rejected - decided against Revenue. - Appeal No. E/971/11 - ORDER NO.FO/A/77849/2017 - Dated:- 9-11-2017 - Mrs. Archana Wadhwa, Member ( Judicial ) Shri S.Guha, AC(AR) for the Revenue None for the Respondent ORDER Per Mrs. Archana Wadhwa. Being aggrieved with the order passed by Commissioner(Appeals), Revenue has filed the present appeal. Nobody appeared for the respondent. I have heard Shri S.Guha, AC(AR) for the Revenue. 2. As per facts on record, the appellant is engaged in the manufacture of cement. A team of Central Excise officers belonging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of excise on a quantity of 53330.39 MTs of cement said to have been manufactured and clandestinely removed by the appellant during the period 01.11.99 to 31.05.2000. It was also proposed to charge interest from the appellant as well as to impose penalty under section 11AC of the Central Excise Act, 1944, read with Rule 173Q of the erstwhile Central Excise Rules, 1944. The appellant replied to the notice denying all the allegations in the notice. These were not accepted by the lower authority and he confirmed the demand of duty amounting to ₹ 13,52,113/- and held the same payable under the provisions of section 11A(1) of the said Act. A penalty of an equal amount was imposed on the appellant under section 11AC of the said Act. Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law be held as genuine or reliable. I, therefore, hold that such Gate Register and the Clinker Verification Report cannot be accepted as genuine and not reliable piece of evidence. 7. Gate Register and the Clinker Verification Report can be taken as admissible evidence provided there is corroboration to what is stated in these. It has been stated by the appellant that the Department has not been able to adduce an iota of evidence which would go to show that such cement had been manufactured and cleared clandestinely by the appellant. I find sufficient force in the plea of the appellant. There is nothing on record to show by the Department excess purchase of raw material, excess consumption of electricity, excess use of man power, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal on the sole ground that Gate Register and loose sheets showing the clinker consumption recovered from the factory are evidences to indicate that the assessee was indulging in clandestine removal and the demand of duty was rightly confirmed by the original adjudicating authority. 5. On going through the impugned order of Commissioner, I find that he has rightly observed that the said two registers cannot be made the basis for arriving at adverse findings against the assessee. For establishing clandestine removal, positive evidence in the shape of procurement of raw materials, actual manufacture of the goods, clearances by transporter, identification of the customers and payment of consideration for such clandestinely removed goods, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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