2017 (10) TMI 2

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.... be accepted. As such, extending the benefit of doubt to the Appellant, I set aside the impugned order and allow the appeal with consequential relief to the Appellant. 2. The ld. A.R. for the Revenue made the Bench go through Paragraphs (iii), (iv), (v), (vi), (vii), (viii), (ix) & (x) of Grounds of Appeal. For better appreciation of the facts, Para (iv) is reproduced below :- "(iv) On the contrary, their consumption of electricity, indisputedly, during the time periods from 1700 Hrs to 2300 Hrs and from 2300 Hrs to 0600 Hrs (as evident from their electricity bills) was constantly found to be much higher (even double) than 'that' during the time period from 0600 hrs to 1700 hrs, which was their declared production shift. Examples are ....

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.... built upon the consumption of electricity and no materials/documents have been brought on record by the adjudicating authority for ascertaining the alleged clandestine production and removal. No details have been brought on record in respect of the consumption of raw materials, transportation, wages, final products, receipt of payment of alleged clandestine removal of final product and so on and so forth. He argued that doctrine of preponderance of probability is not applicable to the instant case and the department has no grounds to raise this issue without any basis against the respondent-assessee. He prayed that in consideration of the submission made and the decisions of the Hon'ble Supreme Court and the Tribunal relied upon, the alleg....

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....dences, the charge of clandestine removal cannot be accepted. 8. I find that the findings of the lower appellate authority is contradictory inasmuch as, he is accepting that the Department had variable data on substantial power consumption and thereafter, on the basis of various case laws, it has been held that the consumption of electricity appears suspicious. In my considered view, the charge of clandestine removal is to be established on examination of facts of each case and not merely on the basis of case laws. 9. I do not find any clarity in the findings of the lower appellate authority and therefore, such order cannot be sustained. 10. The ld.Counsel on behalf of the respondents strongly relied upon the decision of the Tribun....