2012 (5) TMI 322

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....bsp; 2. As per facts on record the respondents are engaged in the manufacture of non-alloy steel ingots. Their factory was visited by the Central Excise officer on 3.9.2001, who conducted stock verification and found certain shortages in the inputs and excess in the final products. However, a separate show cause notice stand issued for the same which is not the subject matter of present appeals.   3.. It is seen that some informer provided 5 photo copies of the sale invoice issued by respondents M/s. Renny Steel Casting Pvt. Ltd. Proceedings alleging clandestine removal were initiated against the said respondents, on the basis of said photo copies, resulting in confirmation of demand of duty of Rs.1,54,784/- and imposition of pen....

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....copy available is exact copy of the original document before any cognizance of such copy is taken for any legal matter. Thus, there is strength in the argument of the appellants that the photocopies of sale invoices cannot be made sole basis to allege clandestine removal. And the findings of the adjudicating authority regarding the evidentiary value of the said copies of invoices in the instant case in terms of Section 36B(1)(b) does not hold good in view of the distinction between facsimile copy and xerox copy made by the Tribunal in the above referred case law. It is apparent that in such cases of clandestine removal when the appellants denied having removed any goods as alleged by the department, it was imperative that the consignees sho....

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....is on the department to prove clandestine removal of excisable goods. It is well settled that initial burden always rests on the Revenue to prove the clandestine manufacture and thereafter removal of the goods by the assessee. This burden has to be discharged by adducing some cogent and tangible evidence. In the instant case, such evidence is lacking. It is conclusive that as there is no admission by the appellants no.1 and there is also no evidence to prove actual clearance of the goods through invoices in question by the appellants in a clandestine manner, the duty demanded could not be confirmed just on the basis of photocopies of sale invoices by an informer, without seeking corroboration from the other evidence regarding the actual rem....