9911796707
TMI Blog2010 (7) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... ,962/- for the period 14-11-1997 to 31-12-1998 on the ground that they had manufactured and cleared dutiable plywood sheets without payment of appropriate duty due therein with intention to evade payment of duty by willfully suppressing the fact of clearance of the goods, using the brand of another person and also under-invoicing the product and collecting the additional amount in cash. The appellants resisted show cause notice on various grounds. The adjudicating authority after considering the submissions made by the assessee confirmed a demand of Rs. 15,58,713/- and imposed equivalent amount of penalty and also demanded interest under Section 11AB of the Central Excise Act 1944 on the ground that there was under-valuation and also use of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the goods of the assessee from 1994, had given statement stating that they had purchased plywood having brand name "Crown Ply" from the assessee. He would submit that the dealers have clearly stated that they get the said branded product from appellants firm i.e. Sovereign Plywoods and Malabar Plywood Works. 4. We have considered the submissions made at length by both sides and perused the records. The issue involved in this case is whether the appellant has evaded appropriate duty payable by him by under-valuation and whether the appellant has cleared plywood of various specifications, bearing the brand name "Crown Ply" belonging to some other persons and if so, whether they are eligible for exemption under Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed based on the statements given by various persons including the managing partner and dealers. The main point in the appellants' appeal is also that the demand of duty has been confirmed based on assumptions and presumptions only. It is seen that no documentary evidence has been produced nor depended upon by the original authority. If the goods have been under invoiced as alleged, the excess cash collected over the invoice value should have flowed back but there is no mention about this angle. The statement of the managing partner had been retracted the next day. Even though the department may not be required to prove its case with mathematical precision, it is not relieved of its obligation to establish the guilt of the offender by dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings before us, we find that the very same evidences have been relied upon by the adjudicating authority to come to a conclusion that there is under-valuation of goods. This is evident from paragraph 20 of the impugned order. Besides this, there is no other corroborative evidence brought forth by the adjudicating authority for upholding the allegation that there was under-valuation of the good by the appellant. In the absence of any such contrary evidence on records, we find that the judgment of the Tribunal in the appellant's sister concern case will be squarely applicable. We hold that the impugned order to the extent it holds that there is under valuation is not sustainable. 7. As regards another allegation that the appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot entitled to the benefit of SSI exemption under Ntfn. No. 1/93 dated 28-2-93 from 1-4-94 onwards in view of the amendment made by Nftn. 59/95 dated 1-3-94 regarding restriction in the use of the brand name of another person. The value of clearance of plywood cut bits were not included in the demand of duty since the same were cleared without affixing the brand name and so the exemption under notification 1/93 (subsequently 16/97) was available to the goods." It can be noticed from the above reproduced finding, that the adjudicating authority has only relied upon the statements of the dealers. It is also seen from the order-in-original that in paragraph 19, the adjudicating authority has recorded the following findings : "19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee's invoices as admitted by Shri N.P. Khalid in his statement dated 11-11-1997. As the assessee has not increased the invoice price of plywood during the period covered under the second show cause Notice i.e. 14-11-1997 to 31-12-1998, it is evident that the assessee has under valued their products to the same extent as above." It can be noticed from the above reproduced portion of the adjudicating authority's finding that the dealers have retracted the statements while replying to the show cause notice had have also in the cross-examination withdrawn the statement as has been recorded from them. In the absence of any corroborative evidence indicating that the assessee was using the brand name "Crown Ply" on the products manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X
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