JUDGMENT 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal filed by the appellant. 2. The counsel for the appellant has framed the following substantial questions of law: 1. Whether the ld. CESTAT has grossly erred in law in ignoring the vital evidences in the form of voluntary statements of the Director and General Manager of the Company and the loose slips recovered by the Department during the search in setting aside the order of the ld. Adjudicating Authority? 2. Whether the ld. Adjudicating Authority grossly erred in law in ignoring the voluntary statements of the Director and General Manager of the Company while dropping the partial demand? 3. Whether the ld. CESTAT has grossly erred in law in setting aside the penalties on the Director and General Manager of the Company who were actively engaged in clandestine removal of the goods? 4. Any other question of law as the Hon'ble High Court may formulate and decide the same in terms of sub section (3) & (5) respectively of Section 35G of the Central Excise Act, 1944. 3. However, taking into consideration, the observation made by the Tribunal which reads as under: 6. Revenue has challenged the dropping of demand to the extent of Rs. 30.85 lakhs. The demand of about Rs. 60 lakhs was proposed in the show cause notice on the basis of the quantification relying on 32 kachha parchis recovered during search proceedings. The assessee contended during the course of adjudication that out of 32 slips, 25 slips of various dates were of different despatches, which correlate and reconcile with the excise invoices issued to the respective parties. They have further claimed that all the clearances were duty paid and there was no clandestine clearance. The adjudicating authority has carefully gone through the said 25 slips alongwith the connected invoices and other documents submitted by the assessee and has given detailed discussions in para 36 of the impugned order. With reference to each kachha parchi and the relevant invoice, he has recorded that the quantity, size, truck No. name of consignee mentioned in the invoice are completely matching with the details so given in the recovered kachha parchi. Further, he has recorded that the subject invoices have been duly entered in RG-1 register as well as the ledger account. With reference to each kachha parchi and the relevant invoice, he has recorded that the quantity, size, truck No. name of consignee mentioned in the invoice are completely matching with the details so given in the recovered kachha parchi. Further, he has recorded that the subject invoices have been duly entered in RG-1 register as well as the ledger account. In the light of the above, he has concluded that the subject consignee were cleared on payment of Central Excise duty. We have gone through the records of the case as well as the findings of the adjudicating authority in this regard. We are of the view that since the adjudicating authority has given detailed findings that all the goods covered by 25 kachha parchis have been cleared on payment of duty, we find no reason to take a different view. Consequently, we uphold the dropping of demand of Rs. 30,85,849/- and reject the Revenue's appeal. 7. The adjudicating authority has confirmed the demand amounting to about Rs. 30 lakhs on the basis of seven kachha parchis in respect of which the assessee was not in a position to submit proof for clearance of goods under invoices without payment of duty. He has further recorded that both Sh. J. D. Pant, General Manager as well as Sh. P.C. Jain, Director have given inculpatory statements under Section 14 of the Central Excise Act to the effect that goods covered by kachha parchis were clandestinely cleared without payment of duty. Further, the assessee has also paid the entire duty for the goods covered by 32 slips. These findings of the adjudicating authority have been challenged by the assessee in the present appeals. It is their submission that the goods covered by these seven slips were never despatched from the factory for various reasons. It is their submission that the kachha parchis were initially made for internal use indicating the quantity of material, name of the party, place to which goods to be despatched and other details. Later on, the relevant quantum of goods are identified from the stockyard and loaded into the despatch truck whose number is also included in the kachha parchi. In respect of these seven kachha parchis, the orders placed by the customers have got cancelled and hence no goods were despatched to the parties indicated in the kachha parchi. 8. Later on, the relevant quantum of goods are identified from the stockyard and loaded into the despatch truck whose number is also included in the kachha parchi. In respect of these seven kachha parchis, the orders placed by the customers have got cancelled and hence no goods were despatched to the parties indicated in the kachha parchi. 8. On going through the impugned order, we note that the adjudicating authority has not given due consideration to the submissions made by the appellant. The allegation of clandestine removal has been upheld in respect of goods mentioned in the seven parchis only on the basis of inculpatory statements given by Sh. J.D. Pant, General Manager and Sh. P.C. Jain, Director. We find from the record that Revenue has not undertaken any verification either with the buyers or even with the transporters. No investigation appeared to have been carried out to prove that such goods were manufactured in the factory but not accounted for. 9. Clandestine clearance is a serious allegation and needs to be established on the basis of tangible evidence. It is well established fact that only on the basis of the inculpatory statement, the charges of clandestine clearance cannot be upheld. The inculpatory statements given by the General Manager and Director also do not specifically cover the seven parchis. In the absence of any corroborative evidence to indicate that the goods covered by seven parchis were cleared by the appellant, we are of the view that the charge of clandestine clearance and demand of duty cannot be sustained. The assessee has cited a large number of decisions to support the contention that clandestine clearance cannot be upheld without tangible evidence. 4. We are of the opinion that valuation of seven parchis which were found will come to less than 50 lacs and in view of the circular of the Department dated 11.7.2018 which reads as under: F.No.390/Misc./116/2017-JC Ministry of Finance Department of Revenue Central Board of Indirect Taxes & Customs (Judicial Cell) ******** 'B' Wing, 4th Floor, HUDCO-VISHALA Building Bhikaji Cama Place, R.K. Puram, New Delhi-66 Dated 11.7.2018 INSTRUCTION To 1. All Principal Chief Commissioners/Chief Commissioners/Principal Commissioners/Commissioners of Customs/Customs (Preventive)/GST & CX; 2. All Principal Director Generals/Director Generals of Customs, GST & CX; 3. Chief Commissioner (AR); Commissioner Directorate of Legal Affairs, CBIC; 4. All Principal Chief Commissioners/Chief Commissioners/Principal Commissioners/Commissioners of Customs/Customs (Preventive)/GST & CX; 2. All Principal Director Generals/Director Generals of Customs, GST & CX; 3. Chief Commissioner (AR); Commissioner Directorate of Legal Affairs, CBIC; 4. <webmaster.cbec@icegate.gov.in> Subject : Reduction of Government Litigation Raising of monetary limits for filing appeals by the Department before CESTAT/High Courts and Supreme Court in Legacy Central Excise and Service Tax : regarding. In exercise of the powers conferred by Section 35R of the Central Excise Act, 1944 made applicable to Service Tax vide Section 83 of the Finance Act, 1944, the Central Board of Indirect Taxes and Customs fixes the following monetary limits below which appeal shall not be filed in the CESTAT, High and Supreme Court:- S. No. Appellate Forum Monetary Limit 1. CESTAT Rs. 20,00,000/- 2. High Courts Rs. 50,00,000/- 3. Supreme Court Rs. 1,00,00,000/- 2. This instruction applies only to legacy issues i.e. matters relating to Central Excise and Service Tax, and will apply to pending cases as well. 3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases from the High Courts, CESTAT and Commissioner (Appeals). All other terms and conditions of concerned earlier instructions will continue to apply. 4. It may be noted that issues involving substantial questions of law as described in para 1.3 of the Instruction dt. 17.08.2011 from F No 390/Misc/163/2010-JC would be contested irrespective of the prescribed monetary limits. 5. Since withdrawal of Departmental Appeals is a long drawn activity requiring routine and constant monitoring, formats have been introduced in the Monthly Performance Report for all field formations to send monthly reports regarding status of withdrawal of appeals in the MPR (refer table M/M-1). Details of the said cases should also be available in a separate register for further perusal by the Board as and when required. Tables are in the Annexure A attached. The description of the Tables in brief is provided below: (a) Table M: Position of withdrawal with reference to raised monetary limits SC/HC/CESTAT (as per instruction dated 11/07/2018) (b) Table M-1: Remaining to be filed/withdrawn SC/HC/CESTAT. Tables are in the Annexure A attached. The description of the Tables in brief is provided below: (a) Table M: Position of withdrawal with reference to raised monetary limits SC/HC/CESTAT (as per instruction dated 11/07/2018) (b) Table M-1: Remaining to be filed/withdrawn SC/HC/CESTAT. (Ranjana Jha) Joint Secretary (Review) Annexure - A F.No.390/Misc./116/2017-JC Table M Position of cases wrt Raised Monetary limits (as per instruction -11/07/2018) As on (Last working day) Position of withdrawal in Departmental Cases raised monetary limits SC 25 Lakhs-1 Crores)/HC 20-50 Lakhs/CESTAT 10-20 Lakhs S. No. I. Zones (in alphabetical order) II. Identified III. Filed IV. Withdrawn SC HC CESTAT TOTAL SC HC CESTAT TOTA SC HC FILED WITHDRAWN SC HC (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) Table M -1 Cases remaining to be filed/withdrawn (as per instruction -11/07/2018) As on (Last working day) Remaining to be Filed/Withdrawn S. No. I. Zones (in alphabetical order) I. Remaining to be filed* II. Remaining to be withdrawn** SC HC CESTAT Total SC HC CESTAT Total (a) (b) (c) (d) (a) (b) (c) (d) *identified minus filed in Table M **filed minus withdrawn in Table M 5. We are not inclined to interfere in the appeal. Moreso, counsel for the respondent has relied on the decision of this Court in D.B. Central/excise Appeal No. 26/2017, Commissioner of Central Excise V/s Mittal Pigment Pvt. Ltd, decided on 2.5.2018 wherein it has been held as under: 6. Taking into consideration, we are of the opinion that the view taken by the Allahabad High Court is required to be accepted inasmuch as in the statement of Director and laboratory report, there is nothing on record to establish that the manufacturing process has taken place either by way of electricity bills, labour charges, transport charges or any corroborative piece of evidence is available. 6.1 In that view of the matter, the view taken by that tribunal is just and proper and does not require interference. 6.1 In that view of the matter, the view taken by that tribunal is just and proper and does not require interference. For ready reference, the finding of the Tribunal is quoted below: "6.1 Further the department has not gone beyond the approximation of yield which they have shown as 70 to 84% in col.3 of Annexure-A attached to the show cause notice and average yield overall had been shown as 77.60% which has been made the basis for issuance of the show cause notice (SCN) as well as for confirming the duty of central excise by the impugned order dated 19.5.2009. The department confirmed the duty demand along with interest for the period of five years alleging suppression of clandestine removal of the final product and also imposed penalty mainly based on the production approximation and on the statement of Director of the unit, Shri Agarwal, who is one of the appellants in this case. 6.2 The department has not gone beyond the approximation and the statement of Shri Agarwal. Any prudent person would not so conclude on extra production by approximation and by a mere statement of the Director of the company. Unless there are further corroborations in the form of documentary evidences, which could be like despatch details for the production, receipt details of the said material, transactions of the sale money, transportation details of such goods, details of additional consumption of electricity for such suppressed production a prudent individual would not agree with the present conclusions of the Revenue. There is nothing on record from the Revenue side to come to a reasonable conclusion to say that there has been preponderance of probability of such suppressed production on the part of the appellant. The evidences in the form of approximation and averaging production as 77.6% and one statement of Shri Agarwal, Director of the appellant company cannot be called a prudent conclusion of the production estimate. 6.3 Consequently, we are of the considered view that the department has not discharged its burden of conclusively proving the case of suppressed production and clandestine clearance by the appellants. In this regard we seek support from Hon'ble Allahabad High Court's decision in the case of Continental Cement Company Vs. Union of India, (2014) 309 ELT 411 (All.) and Supreme Court's decision in the case of Oudh Sugar Mills Ltd. Vs. In this regard we seek support from Hon'ble Allahabad High Court's decision in the case of Continental Cement Company Vs. Union of India, (2014) 309 ELT 411 (All.) and Supreme Court's decision in the case of Oudh Sugar Mills Ltd. Vs. Union of India, 1978 2 ELT (J.172)(SC) and CESTAT's in the case of Punalur Paper Mills Ltd Vs. CCEvide Final order No. 996-997/2008 dated 26.8.2008. The Hon'ble High Court in the case of Continental Cement Company has inter alia observed as under: 13.......to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department.... 14....... 15.......When there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible......." 7. Considering above discussions and the case laws cited above, we conclude that the Revenue has failed to reasonably prove suppressed production and clandestine clearance on the part of the appellants. Consequently, the impugned order in respect of confirmation of duty for alleged suppressed production, and imposition of fine and penalty on the appellant No. 1 and imposition of personal penalty of Rs. 40 lakhs on Shri Agarwal who is appellant No. 2 are hereby set aside. The appellants will get the relief accordingly. 8. The impugned order has confirmed another Central Excise duty of Rs. 1,31,898/- on short found inputs which was deposited by the assessee and was appropriated to the government account. In this regard, there has not been any submissions by the appellants. Therefore, this part of the order confirming the said duty of Rs. 1,31,898/- does not warrant any intervention from this Tribunal. It is hereby sustained." 7. Therefore, the issues are required to be answered in favour of the assessee against the department. 6. Further she has relied on the decision in Commissioner of Central Excise V/s. Mr. Arun Jain, D.B. Central Excise Appeal No.2/2018 decided on 14.3.2018 wherein it has been held as under: Now the controversy involved in the appeals is covered by the decision of this Court in case of Commissioner of Central Excise vs. Tara Chand Naresh Chand (DB Central/Excise Appeal No. 120/2017) decided on 6th December, 2017 wherein it has been held as under:- "5. Counsel for respondent contended that there is no substantial question of law. Counsel for respondent contended that there is no substantial question of law. It is appreciation of fact and in view of decision by this Court Union of India vs. Jain Plas Pack (P) Ltd., (2008) 221 ELT 180 (Raj.) wherein it has been observed as under:- "2. In appeal is the order passes by the Customs Excise and Service Tax Appellate Tribunal dated 3.8.2005 allowing the appeal of the respondent No. 1 by setting aside the demand of Rs. 72,707/- as the duty adjudicated on alleged removal of the fabric from the factory and like amount of the penalty levied by the Adjudicating Officer. 4. The manufacturer's case from the beginning was that the register found during the visit of Excise Authorities in question was not a register maintained for recording production but was a document maintained for the purpose of keeping supervision over the factory workers and on their daily production was entered on estimate basis only. Before entries were made in RG-1 the product was actually weighed and actual weight was entered in RG-1. In support of this contention, the manufacturer had also produced a chart of procuring raw material and its corresponding production. This explanation had not been accepted by the Adjudicating Officer. 5. However, the Tribunal found the explanation to be plausible and considering the fact that no attempt was made by Adjudicating Officer to verify the correctness of explanation put forward by the manufacturer in light of corroborative material produced by about the procurement and disposition of the raw material, there was no reason to doubt the correctness of the material. In view thereof the explanation furnished by the manufacturer was accepted by the Tribunal and the levy of the duty as well as the penalty was deleted. 6. The aforesaid narration clearly goes to show that findings reached by the Tribunal are findings of fact and does not give rise to question of law. 7. Accordingly, the appeal fails and is hereby dismissed." 6. He has also relied upon the decisions of Madras High Court in D.V. Kishore vs. Commr. of Cus. (Seaports Imports), Chennai, (2017) 350 ELT 527 (Mad.), wherein it has been observed:- 26. 7. Accordingly, the appeal fails and is hereby dismissed." 6. He has also relied upon the decisions of Madras High Court in D.V. Kishore vs. Commr. of Cus. (Seaports Imports), Chennai, (2017) 350 ELT 527 (Mad.), wherein it has been observed:- 26. It is also the findings on the part of the Tribunal to state that there was no effective and reliable denial on the part played by the appellant either in the proceedings before the Commissioner or before the Tribunal. 27. In fact, the appellant had started retracting his statement of confession itself from the beginning and when that being so, such a finding as has been given by the Tribunal, would not stand in the legal scrutiny. The further reasons given by the Tribunal is that, even though the only defence apparently was that the statements had been retracted, the seizure of gold and the consensual deposition by other witnesses implicating the appellant and therefore, the same cannot be ignored. 2. S.M.A. Siddique vs. Government of India, (1989) 42 ELT 541 (Mad.), wherein it has been observed:- 2. Mr. K. Ramaswami, learned Counsel for the petitioner, would primarily urge that the decision of the Criminal Court on merits and on identical facts and charges having been rendered in favour of the petitioner, anterior to the disposal of the appeal by the second respondent, it would be unfair and not in consequence with the principles of natural justice to ignore the said decision and penalise the petitioner by the imposition of the penalty. He places reliance on certain pronouncements of this Court, which I shall presently refer to. The submission of the learned Counsel for the petitioner that the judgment of the Criminal Court was on merits and on identical facts and charges is tenable because as I could see from the copy of the judgment in the criminal case, there has been a relevant and appropriate consideration of the factual materials, which are identical and in respect of identical charges and the Criminal Court has categorically opinion that the petitioner could not be found guilty of the charges. In D Silva v. Regional Transport Authority, (1952) 65 LW 73 , a bench of this Court observed as follows : "We have no hesitation in making it clear that a quasi-judicial Tribunal like the Regional Transport Authority or the Appellate Tribunal therefrom cannot ignore the findings and Orders of competent Criminal Courts in respect of an offence, when the Tribunal proceeds to take any action on the basis of the commission of that offence. Let us take the instance before us. The offence consist in smuggling foodgrains. For that same offence, the petitioner was criminal prosecuted. He has also been punished by his permit being suspended for a period of three months. If the criminal case against him ends in discharge of acquittal, it means that the petitioner, is not guilty of the offence and therefore did not merit any punishment. It would indeed be a strange predicament when in respect of the same offence, he should be punished, by one Tribunal on the footing that he was guilty of the offence and that he should be honourably acquitted by another Tribunal of the very same offence. A primarily the Criminal Courts of the land are entrusted with the enquiry into offences, it is desirable that the findings and orders of the Criminal Courts should be treated as conclusive in proceedings before quasi-judicial Tribunal like the Transport Authorities under the Motor Vehicles Act." 3. Commissioner of Central Excise vs. Omkar Textile Mills Pvt. Ltd., (2010) 259 ELT 687 (Guj.), wherein it has been observed:- 2. The facts of the case stated briefly are that the Respondent is engaged in the business of processing of cotton fabrics and man made fabrics falling under Chapter 52, 54 and 55 of the First Schedule to the Central Excise Tariff Act, 1985. The factory premises of the Respondent came to be searched on 9-7-2003. According to the Appellant, during the course of search, on physical verification of finished processed cotton fabrics and man made fabrics at the various stages of processing i.e., bleaching, dyeing, printing, finishing, packed in HDPE bags on comparison with recorded stock, a shortage of 175-178 L. mtrs. of processed MMF valued at Rs. 31,53,204/- involving Central excise duty of Rs. 3,15,329/- was detected. Accordingly, a panchnama came to be drawn recording the said facts. of processed MMF valued at Rs. 31,53,204/- involving Central excise duty of Rs. 3,15,329/- was detected. Accordingly, a panchnama came to be drawn recording the said facts. Statement of a Director of the Company, Shri Rajnikant Omkarmal Agarwal also came to be recorded, under Section 14 of the Act, wherein apart from several other admissions, he admitted the contents of the panchnama. Statements of other employees of the Respondent were also recorded under Section 14 of the Act. Subsequently, a show cause notice came to be issued to the Respondent calling upon it to show cause as to why Central excise duty amounting to Rs. 4,30,275/- should not be demanded under Section 11A of the Act, as well as, as to why mandatory penalty and penal interest should not be imposed. 5. As can be seen from the order made by the adjudicating authority, before the adjudicating authority, the Assessee had contended that the shortage of fabrics shown in the panchnama was not correct as they had produced the documents to show that the fabrics in question had not been cleared without payment of duty, but the officers who drew the panchnama did not take into consideration their request and did not even physically verify the stocks. Shri Rajnikant Agarwal, Director of the Assessee-Company submitted an affidavit wherein it was clearly mentioned that the stock verification was not conducted physically and was not compared with the recorded balance thereof. It was contended that the statements and panchnama were both recorded forcibly and the factual position of stock was not ascertained. He had, therefore, by affidavit dated 20-7-2003 retracted the facts mentioned in the panchnama and the statements. 9. Thus, all the authorities below viz., the adjudicating authority, Commissioner (Appeals) as well as the Tribunal have concurrently found that except for the statement of the Director of the Assessee Company, Shri Rajnikant Agarwal recorded on 10-7-2003, there was no other evidence in support of the charge of clandestine removal of goods. The statement recorded on 10-7-2003 had subsequently been retracted by Shri Rajnikant Agarwal. Thus, it is apparent that the only evidence in respect of clandestine removal against the Assessee was in the nature of the statement recorded under Section 14 of the Act, which had been subsequently retracted. The statement recorded on 10-7-2003 had subsequently been retracted by Shri Rajnikant Agarwal. Thus, it is apparent that the only evidence in respect of clandestine removal against the Assessee was in the nature of the statement recorded under Section 14 of the Act, which had been subsequently retracted. Before the adjudicating authority, the Respondent Assessee had led evidence to establish that the charge of clandestine removal is not made out and that there was no shortage of material as recorded in the panchnama which was accepted by the adjudicating authority. The findings of the adjudicating authority stand confirmed by both the appellate authorities. Learned Counsel for the Appellant is not in a position to point out any evidence to the contrary, in support of the case of the revenue as regards shortage of material or clandestine removal of goods. Thus, the conclusion arrived at by the Tribunal is based solely upon concurrent findings of fact recorded by all the authorities below. In absence of any perversity being pointed out in the findings recorded by the Tribunal, it is not possible to state that the conclusion arrived at by the Tribunal is, in any manner unreasonable so as to warrant interference. A case of clandestine removal of goods has to be made out on facts which find corroboration from the material on record. In absence of any corroborative material, no demand could have been raised merely on the basis of a statement recorded under Section 14 of the Act, which had been subsequently retracted. 4. Continental Cement Company vs. Union of India, (2014) 309 ELT 411 (All.), wherein it has been observed:- 12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects: (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects: (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out finished product receipt details from regular dealers/buyers. (vi) To find out the excess power consumptions. 13. Thus, to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department. 14. In the instant case, no investigation was made by the Department, even the consumption of electricity was not examined by the Department who adopted the short cut method by raising the demand and levied the penalties. The statement of so called buyers, namely M/s. Singhal Cement Agency, M/s. Praveen Cement Agency; and M/s. Taj Traders are based on memory alone and their statements were not supported by any documentary evidence/proof. The mischievous role of Shri Anil Kumar erstwhile Director with the assistance of Accountant Sri Vasts cannot be ruled out. 5. Commissioner of Central Excise, Ludhiana vs. Nexo Products (India), (2015) 325 ELT 106 (P&H), wherein it has been observed:- 8. The said submission is without any merit. Specific defence had been taken by the manufacturer that no effort had been made to segregate the nuts and bolts into various sizes and to find the shortage by comparing the same with the recorded balance and there was huge stock of 91 lacs pieces of various sizes of nuts and bolts and it was impossible for the Department to come to a conclusive factual finding that there was shortage of 14,25,900 pieces of particular size and if they were all mixed together. The onus would lie upon the Department to undertake the said exercise which was not possible in such a short period due to the large number of inventory which was there at the site. Nothing was brought on record, in any manner, to show that to manufacture such a large amount of 14,25,900 pieces, there was material which had been consumed since neither any relevant record had been shown to show that electricity had been consumed or labour had been utilized to manufacture the said quantity. Nothing was brought on record, in any manner, to show that to manufacture such a large amount of 14,25,900 pieces, there was material which had been consumed since neither any relevant record had been shown to show that electricity had been consumed or labour had been utilized to manufacture the said quantity. Neither the fact of purchase of raw material from the vendors or the sale to the consumers was brought on record. In the absence of any corroborative evidence, the levy of such a huge demand was, thus, totally arbitrary and has been rightly set aside. 9. It is apparent that the demand was raised and a sum of Rs. 14 lacs was taken on the same day and in order to justify the said demand which had been encashed, a show cause notice was issued on 25.04.2006 thereafter. Thus, not only the demand was confirmed but even the penalty had been imposed, which was without any basis. The confirmation is not only on the manufacturer but also on the Proprietor. Such action which had illegally created the demand without even meeting the defence of the manufacturer, has, thus, been rightly set aside by the Commissioner (Appeals) and upheld by the Tribunal. The retraction was made at the earliest, the moment the show cause notice was served and in such circumstances, the questions of law which have been raised by the appellant are answered against the appellant-Revenue and the appeal is, accordingly, dismissed. 7. We have heard learned counsel for both the parties. 8. Taking into consideration the ratio laid down by the Allahabad High Court, as quoted above, only on the basis of statement of Tara Chand who was the partner of the Company, case of the department is not sustainable. 9. In that view of the matter, in our considered opinion, the Tribunal has not committed any error in reversing the view taken by the Commissioner Excise. In that view of matter, no substantial question of law arises. However, we make it clear that since no other material was available as per judgment of Allahabad High Court, therefore, we are not interfering. " 7. In view of the above, no substantial questions of law arises. 8. The appeal stands dismissed.