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2018 (1) TMI 264

estine removal would rarely be available and the standard of proof has to be necessarily based on preponderance of probabilities. Conjunctures and surmises cannot be the basis of proof, when clandestine removal is alleged and for establishing the said charge, there should be positive evidence - when the department alleges clandestine production and removal of goods, without due proper accounting in the records and without payment of duty, the burden of establishing the allegation lies heavily on the department. In the case on hand, the department has not discharged the burden - appeal dismissed - decided against Revenue. - C.M.A. Nos. 3330 and 3331 of 2017 - Dated:- 15-11-2017 - S. Manikumar And R. Suresh Kumar, JJ. For the Appellant : Mr. A. P. Srinivas JUDGMENT ( Judgement of this Court was made by S. Manikumar, J. ) Civil Miscellaneous Appeals are directed against the Common Final Order Nos.1534 and 1535 of 2007 in Appeal No.E/500-501/2003/MAS, dated 27.12.2007, passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai 600 006. 2. Short facts leading to the appeal are that a show cause notice, dated 20.09.1999, has been issued by the A .....

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ned. However, the source or bases of these figures are not furnished. The appellant speaks of ₹ 24,31,47,423/- as the amount deposited in the bank accounts of the trading firms (listed in the appeal) as observed from the bank records. In the next sentence value of CTD bars/rods manufactured and cleared without payment of duty worked out was shown as under:- M/s. SVA M/s. SSRM TOTAL Rs.22,56,68,325/- Rs.262,64,88,747/- 4,12,20,422/- The next sentence states that the duty alleged to have been evaded was ₹ 3,37,90,249/- by SVA and ₹ 61,83,063/- by SSRM. The appellant speaks of two Show Cause Notices issued and mentions that replies were furnished by the noticees. There is a reference to cross examination of various persons who had retracted their depositions made during investigation. 4. In para 10, the following account of the submissions by the Counsel for the notices is given:- "During personal hearing on 29.4.2002, Shri Raghavan, Advocate, presented himself on behalf of the notices. He argued that the demand in the impugned SCN was not based on any material evidences recovered from the premises of the noticees and was merely based on receipt of CTD bars by s .....

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ght on record through the statement was of no help to the Dept. No consignment had been intercepted or seized in transit and no statement had been recorded from the owners and drivers of the lorries and the trip sheet had not been seized. 11.1 None of the persons whose signatures were found in the impugned documents were ever employed by the Noticees and there was nothing to substantiate that the signatures appearing in the correspondences were of the same persons. In the light of the material evidence on record, the Commissioner concluded that Sri Siddique of Cheran Roadways was never involved in transport of alleged unaccounted CTD bars. The Commissioner also observed that without any statement being recorded from Bill Traders, the SCN had sought to allege that those Bill Traders were not independent, but creations of SVA/SSRM. Such proposition was not agreeable. 11.2. With regard to the reason there was no response from the Bill Traders to the summons or to the newspaper advertisement did not infer that the bill traders never existed but were not available for enquiry. He further observed that the investigating officers ought to have verified the bona fides from Commercial Tax O .....

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#39;s Certificate of consumption of power (apparently accepted by the Commissioner) was inadequate explanation as it had not furnished the item-wise particulars of consumption. Apart from this, the only grounds based on which the relief is canvassed are presented in two sentences each in the form of comments on the observations of the adjudicating authority in paragraphs 8.3, 8.4, 8.5, 8.16, & 8.17. These in any case do not build up a case for the revenue or even an intelligible commentary on or sufficient grounds against the impugned order. 7. We find that the statement of facts are shabbily drafted containing mostly allegations levelled in the show cause notice described as evidence without explaining how the same were dealt with in the adjudication order. No valid or cogent grounds worth the name are advanced in the appeal to assail the order sought to be vacated. The appeal is not accompanied by a paper book with copies of documents such as statements and other evidences relied upon in the adjudication proceedings. The appeal memorandum does not set out proper grounds but only offers shallow comments on a couple of observations contained in the impugned order. We reject the .....

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usion, based on the material placed before it and thus, perverse as was held in K.Ravindranathan Nair v. Commissioner of Income Tax, Ernakulam reported in 2001 (127) ELT 11 (S.C.)." Heard the learned counsel for the appellant and perused the materials available on record. 5. The Commissioner of Central Excise, Coimbatore, adjudicating authority, has extensively considered the evidence and submissions and ultimately, found that there is no ground to proceed against the assessees and thus, dropped all further proceedings, initiated in the show cause notice No.62 of 1999, dated 20.09.1999, issued by the Additional Director General of Anti Evasion, Chennai. CESTAT, Chennai, has considered the history of the case and after analyzing the evidence/statements, held that the appeal memorandum only reflects the comments and observations made in the adjudicating order. That apart, the CESTAT, Chennai, has held that there no sufficient grounds to interfere with the Order-in-Original. 6. Though Mr.A.P.Srinivas, learned counsel for the appellant placed reliance on the above judgments and submitted that the Tribunal did not assign valid reasons or indicated application of mind, but misdirect .....

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