TaxTMI 
TaxTMI 
2003 (4) TMI 192
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....ingly, they have prayed that the differential duty of Rs. 2,54,560/- confirmed by the original adjudicating authority and set aside by the Commissioner (Appeals), be restored. Secondly, the Revenue is aggrieved with the Commissioner's (Appeals) findings that there is no evidence, as regards the clandestine removal of radios being manufactured by the respondents and as such have prayed that the demand of duty of Rs. 2,31,398/- dropped by the Commissioner (Appeals) be set aside. 2. We have heard Shri J.R. Madhiam, ld. JDR appearing for the Revenue and Shri B.N. Chattopadhyay, ld. Consultant appearing for the respondents. 3. As regards the affixation of brand name, Commissioner (Appeals) has observed as under : "I find from the show-c....
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....l along taken the stand that the markings "SONU I" & "LITTLE MASTER" were already there on the components (cabinets) and they did not affix such brand names. Hence, the appellant could not be deprived of the benefit of the Notification No. 1/93-CE on the ground that they affixed the brand names "SONU I" and "LITTLE MASTER". 4. Shri B.N. Chattopadhyay, ld. Consultant, submits that the department has not adduced any evidence to show that to whom such brand name belonged. There is also no other evidence produced by the Revenue to rebut the respondents' stand that they did not affix the said brand name on the radios being manufactured by them inasmuch as the same brand names were already affixed on the components imported by them. They have ....
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....d. As such, following the ratio of the above decisions and the Board's Circular, we do not find any infirmity in view of adopted by the Commissioner (Appeals). 6. As regards the issue of clandestine removal, we find that the Commissioner (Appeals) has held that there was no justification for arriving at the findings that the respondents have removed 13,205 pcs. of radios on the basis of two pieces of loose papers. For better appreciation, we reproduce below the order of the Commissioner (Appeals) :- "29.1 I find that the contention of the Department is that pages 18 & 19 (File No. 24/NEC/FY/CPO (Misc. papers) show that the radios were made and cleared from the appellant's factory. Since such details are not available in RG I it has be....
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....tely. Hence on the basis of the retracted statement of the appellant no conclusion could be made only on the basis of a piece of paper and that too unsigned and without any evidence that the said two pieces of paper were recovered from the premises of the appellant and that the figures contained therein were manufactured in the appellant's factory and the same were removed without accounting and without payment of duty. So far as the statements of Sri Nitin Parekh are concerned, I find that the statements were retracted immediately. I, however, will deal with them separately. I also find that the appellant has relied on a number of decisions of the Hon'ble Tribunal wherein it, has been held that clandestine manufacture and removal is a seri....
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.... of receipt of the raw materials and consumption of electricity etc. brought on record. Clandestine removal was not held to be proved. In the case of K. Harinath Gupta reported in 1994 (71) E.L.T. 980 it has been held by the Hon'ble Tribunal that the burden to prove clandestine removal is on the department. Charges based on entries in No. 2 Account having no other corroboration, the charge of clandestine removal was not proved. It was added in the said order that unsigned letters cannot be relied on in deciding clandestine removal. The decision in the case of Gurprette Rubber Industries v. C.C.Ex., Chandigarh reported in 1996 (82) E.L.T. 347 is also cited where it has been held that mere entries in note book maintained by a casual worker wi....