TMI Blog2017 (3) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... emand of duty is not sustainable - appeal allowed - decided in favor of appellant. - Appeal No. E/3493/2012 - Final Order No. 60154/2017 - Dated:- 24-1-2017 - Mr. Ashok Jindal, Member (Judicial) Sh. Sudhir Malhotra, Advocate - for the appellant Sh. V.Gupta, AR - for the respondent ORDER Per Ashok Jindal The appellant is in appeal against the impugned order demanding duty along with interest and imposing equivalent amount of penalty. 2. The brief facts of the case are that the appellant is engaged in manufacture of auto components. During the income tax survey on 17.09.2004, the appellant surrendered income of ₹ 32 lacs under section 133-A of Income Tax Act, 1962, thereafter, the visit was done by the preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proposals made in the show cause notice were confirmed. Aggrieved from the said order, the appellant is before me. 4. The Ld. Counsel for the appellant submits the duty is payable by the assessee of goods manufactured by the assessee. Admittedly, the appellant had surrendered income before the income tax department during the course of survey. The income surrendered by the appellant has been presumed by the Revenue that the said income has been earned by the appellant by manufacturing excess goods. As it is a presumption of the department and no evidence has been produced on record that the appellant has manufactured excess gods and cleared the same without payment of duty clandestinely, the demand is not sustainable. Therefore, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowhere discloses that the amount of ₹ 35 lacs disclosed to income tax authority is attributable to consideration in relation to Mandap keeper. When no evidence is produced by the Revenue to place their stand, we consider it proper to dispose the appeal as well as stay application dismissing Revenue appeal. The same has been affirmed by the Hon ble High Court of Punjab and Haryana reported in 2011 (22) STR 263 (P H) as under: 4. Apart from the fact that it was for the department to show the evasion of service tax and that the money found with the assessee represented proceeds of services provided by it, the commissioner and the Tribunal have followed an earlier order of the Tribunal. On being asked, learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of taxable service. Hence, I do not find any infirmity in the impugned order. Accordingly, stay application as well as the appeal are rejected. Further, in the case of Jai Bhawani Con-Cast Pvt. Ltd. reported in 2008 (230) ELT 632 (Tri. Del.) observed as under:- 5. We find that the in this case demand is raised in respect of the amounts mentioned in the balance sheets under the heading other receipts for the year 2001-2002 and 2002-2003. The case of the Revenue is that these incomes are in respect of the sale of the manufacturing product which were cleared without payment of duty. The appellants are registered with the Revenue authorities regarding their trading activity as per the copy of registration certificate at a differ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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