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TMI Blog2010 (7) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... e statements while replying to the show cause notice had have also in the cross-examination withdrawn the statement as has been recorded from them - When the officers visited the premises of the assessee, they did not find any incriminating materials as regards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. - E/790/2000 - 1253/2010 - Dated:- 7-7-2010 - S/Shri M.V. Ravindran, P. Karthikeyan, JJ. REPRESENTED BY : Shri P. Raghunathan, Advocate, for the Appellant. Ms. Indira Sisupal, JDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - This appeal is directed against order-in-original No. 3/2000 dated 10-3-2000. The rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther person. She would submit that the dealers who were dealing with the goods of the assessee from 1994, had given statement stating that they had purchased plywood having brand name Crown Ply from the assessee. He would submit that the dealers have clearly stated that they get the said branded product from appellants firm i.e. Sovereign Plywoods and Malabar Plywood Works. 4. We have considered the submissions made at length by both sides and perused the records. The issue involved in this case is whether the appellant has evaded appropriate duty payable by him by under-valuation and whether the appellant has cleared plywood of various specifications, bearing the brand name Crown Ply belonging to some other persons and if so, whether they are eligible for exemption under Notification No. 1/93 as amended. 5. As regards the allegation of under-valuation it is noticed that the authorities had issued a show cause notice dated 4-5-98 to Malabar Plywood Works, purportedly, sister concern of the appellant making the same allegation as to under-valuation of the plywood. It is also noticed from the show cause notice that the appellant herein i.e. Mr. N.P. Khalid, was also one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch recorded the following finding : On a careful consideration, we notice that initially Managing Partner had admitted collecting 50% over and above the invoice value in cash but it was denied later on and the statement was immediately resiled. The Revenue did not proceed to make further investigation and did not collect evidence directly or circumstantial in nature. Therefore, in the light of the cited judgments, the Commissioner accepted the assessee s plea. He has also noted that 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. On our careful consideration, we agree with the finding of the Commissioner (A); As there is lack of evidence, the benefit of doubt has been extended to the assessee. There is no merit in this appeal and the same is rejected. On perusal of the order-in-original in these proceedings before us, we 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. This is evident from paragraph 20 of the impugned order. Besides this, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 1/93 (subsequently 16/97) was available to the goods. It can be noticed from the above reproduced finding, that the adjudicating authority has only relied upon the statements of the dealers. It is also seen from the order-in-original that in paragraph 19, the adjudicating authority has recorded the following findings : 19..........Of course, these dealers have denied the extra payment while submitting reply to the show cause notice and during cross-examination at the time of personal hearing. The aassessee has contended that the dealers admitted under duress the payment of extra amount, and their statements are not voluntary. It is seen that these dealers have given their statements in their own hand. It is hard to believe that several dealers of the assessee hailing from distant places have been forced to give statements admitting extra payment of money. Had the statements been not voluntary they would have at least retracted the statements with in a reasonable time. As stated earlier Shri N.P. Khalid in his statement dated 11-11-1997 has admitted that the price of plywood sheets is more than 50% of the price shown in the invoice. Of course, he had subsequently retract ..... X X X X Extracts X X X X X X X X Extracts X X X X
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