TMI Blog2014 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... not survive and is unsustainable, we find no reason for visiting the main appellant as well as all other appellants with penalties. - Decided in favor of assessee. - Appeal No.E/12111,12881-12884,12927,13009-13018,13052,13053/2013-DB - Order No. A/10887-10904/2014 - Dated:- 1-5-2014 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri M.H. Patil, Shri T.C. Nair, Shri Rahul Gajera, Shri R.D. Ganeshan - Advocates For the Respondent : Dr. Jeetesh Nagori, Addl. Commissioner (AR) JUDGEMENT Per: M.V. Ravindran; 1. All these appeals are disposed of by a common order as these are against the very same Order-in-Original and raise a common issue. 2. Appeal No.E/12927/2013 is filed by the Revenue against very same Order-in-Original, while all other appeals are filed by the assessee and various other parties on whom the penalties are imposed. For sake of brevity, we take up the facts as mentioned in Appeal No.E/12811/2013 of M/s Euro Decor Pvt. Ltd. (formerly known as M/s Subhnen Dicor Pvt. Ltd.) hereinafter referred to as main appellant. 3. The relevant facts that arise for consideration are that the Revenue authorities, on an investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based upon the statements of various purchasers, dealers and individuals who had implicated the main appellant of under valuation of the goods. It is his submission that in the second round of litigation, the adjudicating authority granted the cross-examination of the persons/individuals and after noticing that the said cross-examination clearly reveals that the statements which were recorded were either incorrect or coerced; dropped the demands based upon such statements. Ld.Counsel would submit that the adjudicating authority has erred in confirming the demand of approximately Rs.88 lakhs on the main appellant by recording a finding which were never alleged in the show cause notice. After making such a submission, he would take us through the relevant paragraphs of the Order-in-Original. After reading the relevant paragraphs, he would submit that the adjudicating authority has held categorically in Para No.47.4 that there is no evidence to support the case except the statements. He would then take us through the findings recorded by the adjudicating authority from Para 50 onwards of the Order-in-Original and submit that the adjudicating authority has worked out the differential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a dealer/sub-dealer. He has purchased only goods worth approximately Rs.2 lakhs from the appellant and they have been penalized by the adjudicating authority under Rule 26 by imposing a penalty of Rs.2 lakhs. It is his submission that there is no statement recorded which indicate that they we aware that the goods are liable for confiscation due to under-valuation nor there is anything on record to show that the appellant had abetted the under-valuation. It is also his submission that penalty under Rule 26 cannot be imposed on the appellant. 7. Shri Rahul Gajera, Adv. appearing on behalf of all other appellants other than the main appellant and their directors adopts the submissions made by the earlier counsel and submits that invoking Rule 26 for imposing penalties on his all clients is incorrect. 8. Ld. Departmental Representative, on the other hand, while defending the order of the adjudicating authority for confirming the demand and imposing penalty, submits that the adjudicating authority had no other option but to confirm the demand by re-working out the duty liability based upon the evidences on record. It is his submission that there was definitely an under-valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned order complied with our direction in to-to and granted cross-examination of the persons who were present and also granted the main appellant copies of statements of dealers which were in favour of the appellant. 11. The issue to be decided in this bunch of appeals is whether the adjudicating authority has correctly dropped the demand raised in the show cause notice and whether the adjudicating authority were correct in confirming the demand of approximately Rs.88 lakhs on the main appellant-assessee. 12. We find that as regards the confirmation of demand of approximately Rs.88 lakhs, the adjudicating authority in his findings in Para 60 onwards has come to the conclusion that the main appellant had under-valued the goods. To come to such a conclusion, we find that the adjudicating authority has not recorded any acceptable reasoning as to how he came to such a conclusion. We find that in Para No.48.1 and 48.2, the adjudicating authority has recorded that under-valuation is alleged from the fact that the dealers and the sub-dealers had some price lists which when compared with the prices shown in the invoices raised indicated difference. We find that the reasoni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was conducted by the advocate for the appellant, there was no re-examination done. In the absence of any cogent evidence which is in support of the Revenue that there was under valuation, we find that the Revenue s appeal is devoid of merit. Secondly, we find that when the visits were undertaken by the Revenue authorities in the premises of the appellant/dealers/sub-dealers, no incriminating documents indicating there being payment of an amount in excess of the invoice value was withdrawn nor there is any confiscation of the goods. We find that there is no cogent and acceptable evidence which indicate that there is an under-valuation. We find that the statements of the dealers who initially agreed to have paid an amount over and above the invoice value were, in fact, in cross-examination stated that said amount in cash was paid by them for their business purposes to carpenter and the interior decorator in order to boost their sale is not countered nor there is an evidence howsoever remote, to connect such were made by the dealers/sub-dealers to the main appellant or their employees in relation to sale of finished goods. In view of the foregoing, we find that the Revenue has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
