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TMI Blog2019 (5) TMI 1582X X X X Extracts X X X X X X X X Extracts X X X X ..... order in original passed by the Commissioner of Central Excise. An elaborate order was passed by the Commissioner dealing with three issues. Suffice it to refer to the relevant portion of the order of the Commissioner in so far as these three issues are concerned: "69. The manufacturer as well as the six customers in their statements had stated that the difference in amounts between the invoice price and the actual payments received/made are towads spares/paerts supplied along with the rigs, other incidental charges etc. this version of the manufacturer and the customers has neither been rebutted with concrete evidence nor any evidence has been produced to show that the differential amounts relates to the cost of the rig. It is also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Drilling Rig. Overruling this contention, the Assistant Collector confirmed the demand. Appeal filed before the Collector (Appeals) having been dismissed, the present appeal has been filed. 3. The break-up of the total value of the contract is as follows:- Admitted Assessable value : Rs. 7,09,625.00 Value of Kelly and Weight Indicator : Rs. 6,00,000.00 Value of Operating Equipment and Accessories : Rs. 3,15,500.00 Value of additional spare parts : Rs. 2,11,125.00 4. The purchase order breaks up the total amount of the contract as follows: Model L&T 2500 direct circulation trailer mounted drilling rig.... complete as per the specification in Annexure-X : Rs. 22,84, 625.00 Operating equipment & accessories as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly merges that i) though in respect of a few customers, KLR had received some amounts over and above the invoice prices, it has not been proved beyond doubt that those extra amounts either form part of the cost of the rigs supplied to them or towards the cost of spares manufactured and supplied by KLR, ii) though KLR misdeclared the model of rigs in a few cases as seen from the relevant test certificates, here also it has not been conclusively proved that to what extent the assessable value shown in the invoices fro KLR-250 model is undervalued and what exactly is the cost price or assessable value of the R- 1000 model, iii) in respect of other clearances of the rigs during the material period either it has not been proved that the md ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record do engender in our minds a very grave suspicion and the proceedings being penal in nature it is well settled that suspicion however grave it might be, can scarcely take the place of proof. It is laos equally well established that onus of proof of clandestine removal is on the Department, proceedings being penal in nature. Since the evidence available on record is hardly sufficient to sustain the charge set out int eh Show Cause Notice, we are inclined to think that the appellant should be given the benefit of doubt in the facts and circumstances of the case particularly when the proceedings are penal in nature" 101. In fine, I would also like to make some observations in so far as the allegation of undervaluation in the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined had, in the depositions given by them in cross-examination, mostly given averments contrary to what had been purportedly given by them earlier in the statements recorded from them by the department; they had retracted their earlier statement; and it found no infirmity in the conclusions of the adjudicating authority. While a feeble submission is made by Sri B.Narasimha Sarma, learned Senior Standing Counsel for Commercial Taxes, that the findings recorded by the adjudicating authority and CESTAT suffer from perversity, a finding of fact can be said to be perverse only if it is either based on no evidence or is such that no reasonable person would have arrived at such a finding. The Tribunal is the final Court of fact and an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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