TMI Blog2019 (11) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... he material retrieved from the computer seized from the premises of M/s. Dwaraka Mai Associates viz., the dealer of the assessee - From perusal of the record maintained by the dealer of the assessee, the Commissioner has held that the daily sales of Hira brand gutkha did not match with the invoices issued for the sale of gutkha by the assessee. There has to be clinching evidence in the matter of purchase of raw material, use of electricity, removal of final product and its sale in order to prove that the material was removed in a clandestine manner with a view to evade duty. The aforesaid material is not available on record - The Revenue has failed to produce any cogent evidence in respect of the aforesaid aspect of the matter to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether such decision is contrary to the provisions as contained in Section 36(B) of the Act? 2. Facts leading to filing of the appeals, briefly stated, are that the assessee is engaged in the manufacture of Hira and Baoba pan masala containing tobacco which is commonly known as gutkha , jafrani zarda and Hira brand supra , which is covered under the tariff items of the First Schedule to the Central Excise Tariff Act, 1985. The assessee, which is a partnership firm, is registered with the Central Excise Department. Based on the intelligence inputs about the clandestine clearance of Hira brand gutkha manufactured by the assessee without payment of duty with the active involvement of certain dealers. Searches were carrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty along with interest on the excisable goods, in addition to confiscation of the goods. An additional show cause notice was issued on 16.06.2006 demanding duty to the tune of ₹ 4,60,65,669/- along with interest was also served on the assessee on the ground that he clandestinely removed gutkha without payment of the duty. In the aforesaid show cause notice, proposal was also made for imposing of penalty under Rule 24 and 26 of the Central Excise Rules, 2002 and under Section 11AC of the Act, on the assessee and its partners. 5. The Commissioner of Central Excise and Customs, by order dated 18.06.2007, inter alia, relied on 12 railway receipts taken out from the premises of Dwaraka Mai Associates, in support of the finding w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals. 7. Learned counsel for the revenue submitted that there was enough material available on record to show that the assessee cleared gutkha without payment of the duty. Learned counsel for the revenue has read over the order passed by the Commissioner to us and has submitted that the Tribunal grossly erred in reversing the order passed by the Commissioner. It is further submitted that from the computer print-out as well as the railway receipts, it was evident that the assessee had removed the goods without payment of the excise duty. It is further submitted that the burden of proof was on the assessee to examine the Officers of the Railway Department to prove the contents of the consignment. It is further submitted that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r attention to paragraphs 10.4, 10.5, 10.7 and 10.8 of the order passed by the Tribunal. It is further submitted that the Commissioner merely by relying on the third party documents and without adverting itself to the documents pertaining to manufacture and sale of gutkha in question, could not have recorded the finding with regard to evasion of duty which is perverse and has rightly been set aside. It is further submitted that the order passed by the Tribunal is based on meticulous appreciation of evidence on record and does not call for any interference as no substantial question of law arise for consideration in these appeals. In support of his submissions, learned senior counsel relied on Oudh Sugar Mills Ltd., Vs. Union of India, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual to another individual and the same do not indicate that they have been transported by the assessee. In none of the railway receipts against the name of consignor and consignee, either the name of the assessee or his dealers has been mentioned. It has further been held by the Tribunal that no investigation has been conducted by the revenue with the railway parties or with the person, who had dealt with these consignments, to conclude that the consignments were actually of gutkha cleared by the assessee clandestinely during the period from 17.12.2002 to 13.03.2004. 11. From perusal of paragraph 10.7 of the order passed by the Tribunal, it is evident that the Tribunal has taken into account the expenses statement retrieved f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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