TMI Blog2015 (10) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... e identity of workers. Therefore, appellant failed to contradict allegations of Revenue in absence of credible evidence led by it. Accordingly, Revenue succeeds on the allegation of creation of fictitious units by the appellant and clubbing sustains. Clubbing of fictitious units by the appellant and clubbing sustains. Clubbing is accordingly confirmed and adjudication on this score sustains with levy of duty in adjudication untouched by this order subject to recomputation due to valuation defect caused by Revenue. There was no allegation as to under-valuation in the show-cause notice. There is also no evidence on record from Revenue to prove that there was under-valuation of the clearances made. Therefore, adjudication on such count of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured by the appellant were cleared for trading by different concerns. When the show-cause notice did not make any allegation of under-valuation of the clearances made by appellant, the Adjudicating authority re-assessed the clearances making over-valuation thereof adopting trading value which is inconceivable. In absence of such allegation in the show-cause notice Adjudication is bad and ill founded as well as fails to stand. 2.3 So far as penalty is concerned, learned counsel submits that even if there is clubbing then imposition of penalty to the extent of ₹ 5,00,000/- is unwarranted by Rule 9(2) read with Rule 173Q of Central Excise Rules, 1944. 3. Revenue on the other hand supports adjudication, submitting that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this order subject to recomputation due to valuation defect caused by Revenue. 5.3 The second issue raised is valuation of the goods. There was no allegation as to under-valuation in the show-cause notice. There is also no evidence on record from Revenue to prove that there was under-valuation of the clearances made. Therefore, adjudication on such count of arbitrary valuation fails and value disclosed by appellant shall be followed to recompute duty liability of appellant on clubbing all four clearances. 5.4 So far as penalty is concerned, looking into the gravity of the matter, upon redetermination of duty element adopting the value of clearances declared by appellant, penalty to the extent of the duty evaded shall be demandable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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