TaxTMI 
TaxTMI 
2016 (6) TMI 270
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....ned order, a demand of Rs. 7,13,528/- has been confirmed on the ground that the appellant cleared trade samples during the period November 1995 to May, 1997 and did not pay any duty thereon. The appellant was also found guilty of willful misstatement and suppression of facts and consequently extended period was invoked and mandatory penalty also imposed. 2. The appellant has contended that :- 1) It had asserted all along that no samples were cleared without payment of duty during the period November, 1995 to May, 1997. 2) It never admitted that it had cleared any samples duty free during the impugned period and vide its letter dated 13.07.2001 it only stated that samples during the impugned period might have been cleare....
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....ics. 4. We have considered the contentions of both sides and perused the records. We find that at no stage the appellant admitted it had cleared samples during the impugned period without payment of duty. In the letter dated 30.07.2000 it submitted that in its earlier letter dated 16.08.2000 it was mentioned that samples prior to June 1997 might have been cleared from duty paid stock and that was the reason possibly for absence of any specific records about clearance of samples. We find that the SCN contains no evidence of duty free clearance of samples during the impugned period. As regards the contention of the ld. DR that in their statements the officials of the appellant admitted that they cleared samples duty free during the period ....
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....hat demand cannot be sustained on the basis of assumptions and presumptions. In the case of Commissioner of Central Excise vs. Brims Products 2011 (271) E.L.T. 184 (Pat.), it has been held :- "9.In our opinion, since the charge was for clandestine manufacture and surreptitious removal of finished final product, the same is required to be proved beyond doubt by the Revenue. One has to keep in mind that, though being the main ingredient, betel-nut is not the only raw material which is used in manufacture of Pan Masala. That apart, since the investigation has been carried only at the transporters end, no presumption could be drawn with regard to manufacture and removal of the final product. Presumptions and assumptions cannot take pla....
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....sed the facts and therefore central excise duty leviable on trade samples cleared during the period November 1995 to May 1997 amounting to Rs. 7,13,528.00 appears to be recoverable from them under proviso to Section 11A (1) of the Central Excise Act, 1944 (here-in-after referred to as the Act). For the above contravention penalty under rule 173Q of the Rules also appear to be imposable upon the notice No.1. Further it appears that by having withheld the information regarding removal of trade samples with intention to evade payment of duty the notice No.1 have rendered themselves liable to be penalized under section 11 AC of the Act." In the case of Uniworth Textiles Ltd vs. Commissioner of Central Excise Raipur 2013 (288) guilty 161 (SC)....