TMI Blog2019 (2) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... after considering cross examination and other evidence allow the appeal of the assessee - appeal allowed - decided in favor of appellant. - E/550-552/2010-DB - A/10221-10223 /2019 - Dated:- 5-2-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) For Appellant: Shri. T.C. Nair (Advocate) For Respondent: Shri. T.K. Sikdar (A.R.) ORDER Per: Ramesh Nair The brief facts of the case are that the appellant are engaged in the manufacture of decorative plywood and veneer falling under chapter 44 under the brand name URO. Based on certain intelligence of alleged undervaluation of the goods, DGCEI officers visited the appellants factory, the factory of another group company which was adjacent to the appellants factory, company office, residential premises and the director s and other premises etc. on 26.05.2005 and also the premises of various dealers, sub-dealers, customers etc. on 26.05.2005 and also on various other dates. SCN dated 09.05.2007 was issued which was culminated into adjudication order dated 19.12.2008 wherein the demand of duty, penalty, interest and penalties on Directors were also confirmed. Being aggrieved by the order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. This Tribunal vide Order dated 01.05.2014 reported in 2014 (308) ELT 90 (T) in the name of Mekala Raja Plywoods allowed the appeals of the parties and set aside the demand and penalties for lack of evidence against SDPL and others. The department appeal was also dismissed. The said Tribunal order dated 1.5.2014 was not challenged by the department and has been accepted by the CBEC on merit. On the basis of the above proceedings, he submits that since all the relied upon documents, statements in the case of SDPL are same documents in the present case. Since considering all those documents, the demands were set aside partly by the Commissioner and partly by the Tribunal, therefore, since the same documents are involved in the present case, the demand in the present case also does not sustain in the light of judgment of this Tribunal in the case of Mekala Raja Plywoods (supra). He submits that all the statements which were relied upon by the department were stand retracted/ negated in the cross examination, therefore, the same statements relied upon in the present case hence the demand on that basis does not survive. He also invited out attention to list of relied upon documents an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand raised in the show cause notice and whether the adjudicating authority were correct in confirming the demand of approximately ₹ 88 lakhs on the main appellant-assessee. 12 . We find that as regards the confirmation of demand of approximately ₹ 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 Nos. 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 reasoning given by the adjudicating authority seems to be incongruous inasmuch as all these dealers from whose premises the price lists were recovered did in the initial stages stated that these are the price lists of the main appellant but on cross-examination, clearly stated that the price lists were their own price lists and not the price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 riot made out any case in their appeal. 14. In our considered view, yet another angle to entire case is that the adjudicating authority had abandoned or let go of the allegations made in the show cause notice, cannot confirm demand on assumptions or presumptions and reworked out the assessable value, is the law which has been se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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