TaxTMI 
TaxTMI 
2006 (9) TMI 201
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....(2) Whether the Tribunal was justified in holding that the burden of proof to establish clandestine manufacturing and removal of final product from the said raw material lies solely and exclusively on the Department to the extent 100% and cannot be shifted to the assessee, who has failed to prove the use in manufacture or sale of the same as such? (3) Whether the learned Tribunal has erred in not holding that once the Department has discharged the burden of proof of clandestine removal of the final product by cogent evidences such as purchase bills, receipt of raw materials, statements of chemist etc. burden has shifted on the shoulder of the assessee to prove that there was no clandestine removal and that the assessee has failed to disch....
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.... could be. However, they had submitted in their defense replies that Shri Vishnubhai Patel is the proper person to say anything regarding grading of sheets and the investigation filed miserably to extract confession from him regarding the percentage of Ist, IInd and IIIrd grade sheets manufactured by them. Hence, grading of sheet based on solitary confession of unauthorised person like Shri Suthar, Chemist, does not cements the allegation made in the notice." 9. Further the observation of the ld. Commissioner in the next para is as follows : "....Even if the party's argument that Shri Vishnubhai Patel is proper and authorised person to say anything about the grading of sheets as if having an intentional decree on same is taken for g....
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....acture of clandestine manufacture and removal, offence of criminal nature or lesser than that of what is called white color crime, the tax evasion is also done in darkness of night. No one leaves wide hole of evidence to be easily trapped in." 12. As send from the aforesaid observation the ld. Commissioner is in doubtful state of mind as to the application of level of degree of evidence or proof required to establish the clandestine manufacture and removal as they are not criminal proceedings and while holding so, he had thrown the burden on the assessee to establish the said fact and raised presumption as against the assessee on the sole ground that purchase bills were in their name and payment details also stand reflected in the books o....