TMI Blog2005 (1) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... es of some of their agents and recovered the following records :- (i) Registers, ledgers, copy of drafts and correspondence files were seized besides unaccounted cash of Rs. 10,20,816/- from the common office premises. (ii) Magazine Stock Note book delivery memos certain packing chits were recovered by M/s. RFW. (iii) Excess unaccounted stock of fireworks valued at Rs. 3,56,262/- were seized at M/s. RFW. (iv) Certain documents and excess unaccounted stock of fire works valued at Rs. 78,194.55 were seized from M/s. RFI. (v) 'Extra Note Book' and 'Ramakrishna Note Book' and excess/unaccounted fireworks valued at Rs. 14,80,000 were seized of RKFI. (vi) Packing chits and bank pass book were sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise passed the aforesaid order. He confirmed a part of the demand of duty on the basis of the documents listed above and vacated the rest of the demand for want of evidence. The confirmed demand was honoured by the parties. The Revenue is in appeal in respect of that part of the demand which was vacated by the Commissioner. 3. Heard both sides. Ld. DR reiterates the grounds on these appeals. Ld. Counsel for the respondents justifies the order of the Commissioner. Both sides have relied on case law, which we will consider in the appropriate context. 4. Four issues are seen to have been framed by the appellant and these read as under :- "(a) Whether the notices had cleared goods illicitly as per the seized documents viz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point is sought to be substantiated by the Counsel by relying on Final Order No. 864-874/04, dated 18-8-2004 passed by this Bench in Appeals No. E/3118/98 etc. (M/s. Sri Parasakthi Fire Works others v. CCE, Madurai) [2004 (174) E.L.T. 449 (Tri.)]. Ld. Counsel has particularly referred to paragraphs 7 and 8 of the said Order. 5. The following is the case law relied on by ld. DR,- (i) M/s. Roxy Enterprises (P) Ltd. v. CCE - 1991 (53) E.L.T. 585 (T) (ii) Collector of Customs, Madras others v. D. Bhoormull - 1983 (13) E.L.T. 1546 (S.C.) Relying on the decision first mentioned above, ld. DR. has submitted that the statement recorded from the respondents and their employees ought to have been taken as conclusive evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the evidence, the Commissioner has clearly held that though there has been undervaluation of the goods, evidence is only to a limited extent viz. the excess payment received as admitted by some of the dealers as well as DDs received and credited in the personal SB account of the partners. He has also held that so far as the remaining dealers who have not been investigated, benefit of doubt has been extended. Needless to mention that when evidence available is only to a limited extent, demand has to be restricted to that extent where it is supported by evidence and demand cannot be made where it cannot be supported by evidence. This is what exactly the Commissioner has done in the de novo proceedings. Allegation of suppression of facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was evidence of such removal but also in respect of goods for which evidence was not available. It is, by now, settled law that a finding of clandestine removal requires positive evidence to support it. In respect of the clearances for which demand of duty was vacated by the Commissioner, there was no such evidence available. The Apex Court's judgment was cited in support of the plea relating to mathematical precision. We are dealing with a civil dispute and not a quasi-criminal case like the one which was dealt with by the Apex Court. We also find that, even in the case of D. Bhoormull (supra), their lordships held thus "The broad effect of the application of the basic principle underlying Section 106 of the Evidence Act to cases under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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