2010 (7) TMI 570 - AT - Central Excise

Demand - SSI exemption - Under-valuation - Plywood - As regards the allegation of under-valuation it is noticed that the authorities had issued a show cause notice to sister concern of the appellant making the same allegation as to under-valuation of the plywood - 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 - At the time of preventive operation and also during follow-up action, no cash or any other incriminatory material was found, which would justify the conclusion of the Original Authority - 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, find that the judgment of the Tribunal in the appellant s sister concern case will be squarely applicable - Held that the impugned order that there is under valuation is not sustainable. Brand name - 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dealers have retracted the statements while replying to the show cause notice had have also in the cross-examination withdrawn the statement as has been recorded from them - When the officers visited the premises of the assessee, they did not find any incriminating materials as regards the use of brand name Crown Ply - In the absence of any corroborative evidence indicating that the assessee was using the brand name Crown Ply on the products manufactured and cleared by them, find that the impugned order holding so is not sustainable. Brand name of another person - Revenue has not proved beyond doubt that the assessee has been using the brand of Crown Ply , which is of another person on his goods in order to attract the mischief of brand name and denying the benefit of Notification 1/93 as amended - The impugned order to that extent is not sustainable.

Summary

Issues:
1. Allegation of under-valuation of goods and evasion of central excise duty.
2. Allegation of using the brand name of another person on the goods.

Issue 1: Allegation of under-valuation and evasion of central excise duty:

The appeal was against an order demanding central excise duty for manufacturing and clearing dutiable plywood sheets without paying appropriate duty, allegedly with the intention to evade payment by under-valuation and using another brand's name. The adjudicating authority confirmed a demand, penalty, and interest under the Central Excise Act, which the appellants contested. The appellant argued that a previous decision by the Commissioner (Appeals) in a related case favored them, and there was no substantial evidence of under-valuation. The Tribunal noted inconsistencies in the evidence and lack of concrete proof of under-valuation, ultimately ruling in favor of the appellant based on lack of evidence supporting the allegations.

Issue 2: Allegation of using the brand name of another person:

The adjudicating authority alleged that the appellant used the brand name "Crown Ply" belonging to another person on their plywood sheets, thereby disqualifying them from exemption under Notification No. 1/93. The authority relied on statements from dealers claiming to have received plywood with the brand name from the appellant. However, the Tribunal found that the evidence presented was insufficient to prove the appellant's use of the brand name. The authority's presumption that the appellant might have removed branded goods before inspection was deemed unsupported, and inconsistencies in the dealers' statements led to the conclusion that the allegation was not substantiated. The Tribunal held that the revenue failed to prove the use of the brand name, leading to the impugned order being set aside in favor of the appellant.

In conclusion, the Tribunal set aside the impugned order, ruling in favor of the appellant due to the lack of concrete evidence supporting the allegations of under-valuation and use of another brand's name. The decision highlighted the importance of substantial evidence in taxation matters and the necessity of proving allegations beyond doubt.