2005 (1) TMI 239

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....oned, the goods were dispatched and where nothing was mentioned the goods were yet to be dispatched. No verification was conducted at the address of the parties whether any goods were received by them or not. He submits that the Commissioner should not have passed any order without conducting any investigation for clandestine removal. In the absence of any verification, no such charge is sustainable. He submits that the clandestine removal is a serious charge which is required to be proved by the Revenue by production of sufficient and tangible evidence. There must be absolute proof and not on the basis of preponderance of probabilities. He relies on the following decisions : (i)         CCE v. Uni....

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.... that the assessable value is to be determined after deducting the duty from the price charged. He relies on the following decisions : (i)         Nirula and Co. (P) Ltd. v. CCE : 2003 (156) E.L.T. 583; (ii)        CCE v. Maruti Udyog Ltd. - 2002 (141) E.L.T. 3 (S.C.); (iii)       Srichakra Tyres Ltd. v. CCE - 1999 (108) E.L.T. 361 (T-LB); (iv)       CCE v. M.K. Asokan - 2003 (151) E.L.T. A187. He submits that in the present case, the duty has been paid before issuance of show-cause notice. Therefore, the penalty and interest are not sustainable. He relies on the following decisions : (i)&n....

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....f sales and purchase bill not achieved - No inference could be drawn legally for clandestine removal and for the goods cleared after manufacture without payment of duty on this ground - Charge has to be based on concrete and tangible evidence and not on inferences involving unwarranted assumptions - No clandestine removal - Erstwhile Rules 9(2) and 173Q of Central Excise Rules, 1944. In absence of any corroborative evidence like consumption of excess electricity or statements of buyers, it could not also be said that noticee company clandestinely removed goods manufactured from stock found short. (paras 8, 9)" 6. It was held in the case of Commissioner of Central Excise, Coimbatore v. Velavan Spinning Mills reported in 2004 (167) E.L.T. ....