2001 (4) TMI 147

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....a how much shortages could have been there, he gave an eye estimation of some figures and on that basis demanded duty. No physical verification was done in respect of the impugned proceedings. However, in respect of these proceedings, where physical verification was done by the department, the department was satisfied that entries in the Registers had been made and the proceedings were dropped. Appellants contested the case by filing reply to the show cause dated 8-4-1993 contending that there was no verification of the goods lying in the factory on the date of visit and the mere eye estimation cannot be the basis for demand of duty more particularly on the basis of rough estimate given by the officer present at the time of visit of the off....

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....e Apex Court and the Tribunal. Mere assumption and presumption cannot be the basis for confirmation of demand as held by the Supreme Court in the case of Oudh Sugar Mills v. U.O.I. reported in 1978 (2) E.L.T. (J 172). The Tribunal in the case of Madhu Food Products v. CCE reported in 1995 (76) E.L.T. 197 has held that when the evidence of shortage or removal has not been produced by the department, the demand having been made on rough estimation, the demand is not sustainable in law. While arriving at this conclusion the Bench looked into a large number of judgments on this issue. He also relied upon the single Member judgment of the North Regional Bench in the case of K.L. Steels reported in 1998 (100) E.L.T. 406 wherein it has been held t....

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.... On consideration of the submissions, we find that there is lot of force in the submissions of the learned Consultant. As can be seen from the records, the case proceeds on the basis of presumption and assumption. The figure was given by the manager of the appellants in the factory. The Commissioner had clearly held that this cannot be the basis for clandestine removals, yet he concluded that presumption can be drawn on the basis of the statement of the manager. This finding is not in consonance with the judgment of the Apex Court judgment in the case of Oudh Sugar Mills (supra) wherein it has been clearly laid down that burden of clandestine removal is required to be discharged by the department and mere assumption or presumption cannot be....