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2010 (1) TMI 688 - AT - Central ExciseDemand - Clandestine removal - Mis-declaration - Undervaluation - It was submitted during the hearing by the learned Advocate for the respondents that the Department has not really challenged the findings of the Commissioner with regard to under-valuation - it is also necessary to draw samples of decorative plywood if the same were to be found in the factory either of the respondents which would have strengthened the case of the Department and it would have shown atleast that the respondents did indeed undertake manufacturing of decorative plywood - merely because one dealer admitted having paid additionally could not justify the determination of differential duty on the ground of under-valuation on the basis of highest price according to the provision of Section 4 of Central Excise Act, 1944 on all clearances without even ascertaining quantum of such additional consideration It was necessary for the officers to workout the actual assessable value on the basis of the provisions of Section 4 on the evidences gathered. In this case testing of samples and expert opinion and trade enquiry if were to be made as part of investigation would have helped the case of the Department - As rightly observed by the Commissioner while the Department seems to have made out a case that there was undervaluation, it was necessary for the Department to quantify the same and also quantify as per law. In the absence of any effort to quantify and in the absence of effort to use all the evidences gathered properly, it is not possible to sustain the allegations made in the show cause notice - Appeal is rejected
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