Judge grants stay on duty waiver application due to lack of evidence, emphasizing need for proof

The judge allowed the stay application for waiver of duty, noting the appellants' strong prima facie case. Regarding the alleged clandestine removal of goods without duty payment, the judge found the presumption lacking legal basis due to insufficient evidence. Emphasizing the necessity of tangible evidence for such charges, the judge set aside the Commissioner (Appeals) order, allowing the appeal with any consequential relief.

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Issues:
1. Stay application for waiver of duty.
2. Alleged clandestine removal of goods without payment of duty.

Stay Application for Waiver of Duty:
The judgment begins with the discussion of the stay application. The judge notes that the appellants have a strong prima facie case for waiver as they had already deposited Rs. 1 lakh with the Commissioner (Appeals). The stay application is allowed, and with the consent of both sides, the judge proceeds to decide the appeal itself on merits.

Alleged Clandestine Removal of Goods without Payment of Duty:
The facts of the case involve the officers of the Central Excise finding goods without proper markings at the premises of a trader, allegedly purchased from the appellants. The show cause notice proposed duty confirmation on the grounds of clandestine removal and sale of goods without duty payment. The adjudicating authority confirmed a duty demand of Rs. 72,000 with a penalty of equal amount and proposed confiscation of the goods. The Commissioner (Appeals) affirmed this order.

Upon hearing both sides and examining the record, the judge finds that the presumption of clandestine removal by the appellants lacks legal basis. The judge highlights that no tangible evidence supports the claim, as the goods were purchased from the duty paid depot of the appellants. Invoices produced by the appellants were seized, but the Department's claim of inability to correlate them with the seized goods lacks substantiation. The judge emphasizes the absence of unaccounted goods in the duty paid godown or factory premises of the appellants, no admission of clandestine removal by any party involved, and the lack of excess or shortage of raw material to support the allegations.

The judgment underscores the principle that charges of clandestine removal must be supported by tangible and cogent evidence, not presumptions. In this case, the judge finds a lack of such evidence to substantiate the allegations. Consequently, the impugned order of the Commissioner (Appeals) is set aside, and the appeal of the appellants is allowed with any consequential relief permissible under the law.

This comprehensive analysis of the judgment addresses the issues of the stay application for waiver of duty and the alleged clandestine removal of goods without payment of duty, providing a detailed overview of the facts, legal arguments, and the judge's decision.

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