Full Judgment
2. The appellant is a manufacturer of Texturised Synthetic Yarn falling under Chapter Heading No. 5402 of CETA. A comparison of clearances of their product in 94-95 shown in the excise records with those shown in the balance sheet of the appellant for the year 94-95 revealed a discrepancy. The balance sheet shows that the appellant cleared 1758.60 kgs. of the said goods more than what is shown in the excise records. A show cause notice came to be issued on 30.9.99 demanding duty alleged to have been not paid on the above said quantity. The case was adjudicated by the Assistant Commissioner. The appellant neither replied to the show cause notice nor appeared for personal hearing before the original authority.
3. The appellants went in appeal against the order of the Additional Commissioner. In the impugned order the Commissioner upheld the demand for duty. Hence this appeal.
4. The question for decision is whether allegation of clandestine removal can sustain when the balance sheet shows a higher figure of clearance of excisable goods compared to the one shown in the excise records. I observe that such a discrepancy is enough to raise an initial presumption against the assessee. By doing so the Department shifts the burden on to the assessee to prove that the goods involved are not produced and removed without payment of duty. In the present case an allegation of clandestine removal is made against the appellant. He could have rebutted it by giving some explanation.
Instead he close to remain silent. He neither replied to the notice issued to him nor did he appear before the original lower authority for hearing. This conduct on the part of the appellant would lead any reasonable person to believe that he has no explanation to offer. The appellants main contention is that the department did not have any evidence to establish clandestine removal. True. It did not have. But when the allegation of clandestine removal goes unchallenged and the evidence gathered shows that the excise records are not in consonance with the statutory record such as a balance sheet the Department is entitled to draw its own conclusion. In this case the silence on the part of the appellant is fatal. Had he explain as to how and why the balance sheet shows a different figure of clearance of excisable goods, compared to the one shown in the excise records, the burden to establish clandestine removal would have been on the department. The appellant chose to be silent at his own peril.