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TMI Blog2010 (1) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... samples and expert opinion and trade enquiry if were to be made as part of investigation would have helped the case of the Department - As rightly observed by the Commissioner while the Department seems to have made out a case that there was undervaluation, it was necessary for the Department to quantify the same and also quantify as per law. In the absence of any effort to quantify and in the absence of effort to use all the evidences gathered properly, it is not possible to sustain the allegations made in the show cause notice - Appeal is rejected - E/268 & 267/2005-Mum - A/2-5/2010-WZB/C-II/EB - Dated:- 12-1-2010 - S/Shri B.S.V. Murthy, Ashok Jindal, JJ. REPRESENTED BY : Shri Kishori Lal, SDR, for the Appellant. Shri M.H. Patil with Ms. Aparna Hiramdagi, Advocates, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. Revenue has filed these two appeals against two orders of Commissioner vide Orders-in-Original No. 33/NRN/TH-II/2003 dated 17-12-2003 and 34/NRN/TH-1I/20C,3 dated 18-12-2003. The first order No. 33 was passed in the case of M/s. Durian Industries Ltd. and the second order was passed in the case of M/s. Palghar Plywood Products (P) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was manufacturing and clearing the decorative plywood of various varieties and clearing them under invoices as Repressed plywood in addition to clandestine clearance of the same by mis-declaring the same. The Commissioner has totally ignored this piece of evidence. 3.3 The respondents in the written submissions filed on 23-7-2003, had accepted that repressed plywood was interchangeable with word decorative plywood. The Commissioner accepted the dealer s statement to confirm the demand in respect of clandestine removal whereas for under-valuation she rejected this evidence. 3.4 CTH 4408.30 of the Central Excise Tariff Act, 1985 classifies decorative plywood and the Heading is not restricted to decorative plywood conforming to ISI specifications. Therefore the fact that the product manufactured by the respondents does not conform to the ISI specification does not help the case of the respondents. 3.5 The fact that the respondents did not maintain variety-wise details in the RG 1 and therefore their inability to explain the same shows that the respondents had intended to evade duty. The Department was justified in taking the highest of the declared assessable value of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds he submits that the appeals has no merit and are to be rejected. 7. We have considered the submissions made by both the sides and have considered the records and also taken note of the observations of the Tribunal in the order in respect of the respondents on the issue of clandestine removal. 8. It was submitted during the hearing by the learned Advocate for the respondents that the Department has not really challenged the findings of the Commissioner with regard to under-valuation. Instead the challenge is mostly with regard to the charge on clandestine removal and the same have been made applicable for under-valuation also. However, we find that the Commissioner has taken up each piece of evidence gathered and included in the show cause notice and has dealt with them separately. We proceed to consider the issue in the same order. 8.1 Firstly the respondents had mis-declared decorative plywood as repressed plywood so that they could show lower price for their products in this case. The Commissioner has observed that even though some goods were seized from the dealers premises, none of the consignments, samples were drawn and tested to see whether these samples were of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial year and apply the same for whole year. Further nowhere it was brought out why no action was taken by the Department for improper maintenance and improper issue of invoices by both the respondents. We find ourselves in agreement with the observations of the learned Commissioner with another allegation that different assessable values were charged for the plywood of the same thickness cleared during the same period and there appear to be no reasons or basis for declaring such value. We agree with the Commissioner s observation that plywood of same thickness of plywood could attract different prices. For demanding differential duty on this ground alone was not appropriate and also for coming to the conclusion that all the clearances made by the respondents was of decorative plywood variety. Further we also find that there cannot be one price applicable for whole year. As regards the admission of one Shri Ashok that actual price was definitely more than the value shown in the Central Excise invoices and differential amount had been paid by him in cash. She has observed after going through the statement of Shri Ashok that he had only stated cash payment was made to Durian Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and we reproduce the same below :- 66. In sum, I am not holding that there was no ground to challenge the prices declared by the notice. But at the same time I have no hesitation in holding that there are no grounds to uphold the proposal made in the SCN without discussing the nature of transactions and customers who were recipients of the goods cleared by M/s. Palghat Plywood at the alleged highest prices and so also of all others (transactions and goods) cleared at prices lower than the highest price. Even assuming it was not possible to ascertain the normal price (s) of goods cleared to customers, the rationale of adopting the highest price as the nearest ascertainable equivalent to normal price for all clearances cannot be even examined without first analyzing the nature of transaction involved in respect of those clearances for which, the prices declared were lesser than the highest price. Thus, the evidences discussed in the show cause notice, which no doubt creates doubts about the prices that were being declared by M/s. Palghar Plywood and which could have on proper investigation, led to a demand may be of a much smaller amount of duty based on investigation conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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