2008 (2) TMI 802

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....idence showing the payment of Central Excise duty in respect of the said fabrics without payment of duty. 2. On the above basis, proceedings were initiated against them which culminated into passing of the impugned order vide which duty of Rs. 87,482/- was confirmed and a penalty of Rs. 5,000/- was imposed. 3. The appellant's main submission as placed before Commissioner (Appeals) is as under : (i)   The factory premises of the appellant was never searched in order to recover any documents to link with the challans recovered from the trading premises i.e. M/s. R.R. Fabrics. Merely recovery of certain documents at the premises of a trader and without any corroborative tangible evidence to connect the said documen....

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....the said decision relied upon the adjudicating authority is totally irrelevant against the appellants. (v)  They relied upon the decision of Tribunal. In the case of M/s Pratibha Silk Mills, where it has been held that in order to sustain the allegation of clandestine removal, the allegation of illicit processing and illicit removal has to be proved by the department by adducing tangible evidence. The adjudicating authority has conveniently chosen to ignore the said submissions of the appellants. (vi)  The Tribunal in the case of M/s Brims Products - 2001 (130) E.L.T. 719 (Tri.-Kol.) held that the allegation of clandestine removal cannot be said to have been proved and is based on presumptions and assumptions if made on the ....

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....held that the party had acted deliberately in defiance of law. In the present case there is nothing on record which reveals that appellant had acted in any way in defiance of law. As such, the impugned order passed without any material on record, is legally not tenable and the deserves to be quashed and set aside. 4. The above contentions stand reiterated before me. I find that the revenue's case is based upon the statement of proprietor of the shop and the fact of recovery of the fabrics from his second shop. The said evidence is in the nature of the statement of co-accused and cannot be considered to be a very reliable evidence. As regards the statement of the excise In-charge of the appellant company, it is seen that the number o....