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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 ..... mption in view of the fact that they had cleared Durian brand decorative plywood. The Commissioner dropped the issue relating to under-valuation against both the respondents. However, she upheld the charges of clandestine removal. The appeals filed by the parties including the two respondents in this case against the orders confirming clandestine removal and confirming consequential demand for payment of duty and imposition of penalty etc. were decided by this Tribunal vide Order reported in 2006 (197) E.L.T. 130 (Tri.-Bom). In this order the Tribunal set aside the impugned order and allowed the appeals filed by all the parties by a majority of 2 to 1 after the two members of Divisional Bench which heard the matter had difference of -opinion and the matter was referred to 3rd member. As submitted by learned DR during the course of hearing, the Department has challenged this order before the Hon'ble Bombay High Court. The present appeals filed by the Revenue against the two respondents exclusively relates to dropping of demand by the Commissioner holding that the charge of under-valuation of decorative plywood made in the show cause notice against the respondents cannot be sustained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er taking into consideration the proof which it was in the power of one side to prove and the power of other to have contradicted. The Hon'ble Supreme Court has also observed that it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. He also relied upon the decision of the Hon'ble Supreme Court in the case of CCE, Madras v. Systems & Components Pvt. Ltd. - 2004 (165) E.L.T. 136 (S.C.) to submit that what is admitted need not to be proved. In this case there were admission statements of concerned persons and therefore, it was not necessary for the Department to prove its case. Further he also relied upon the decision of the Hon'ble Supreme Court in the case of CCE, Baroda v. L.M.P. Precision Eng. Co. Ltd. reported in 2004 (163) E.L.T. 290 (S.C.) to support his contention that merely because the respondents had filed classification list, it cannot be said that extended period cannot be invoked. 5. In view of the above, he submitted that the impugned order may be set aside and appeals filed by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t material or catalogue cannot be the basis for the purpose of classification. She has further observed that even the catalogue of the Durian Industries does not use the word "decorative". Moreover she has also observed that both attracted the same rate of duty. Therefore the demand does not arise on account of deliberate wrong description of the products but on the basis of allegation that there was under-valuation. Even though she has observed that it is possible that decorative plywood would attract higher price, she has also observed that no evidence has been gathered to support the allegation that the decorative plywood manufactured and cleared in this case attracted a higher price and if so to what extent. The show cause notice has simply adopted the highest price available for the same thickness and applied for the whole year. No evidence has been put forth that all the clearances made by the respondents were decorative plywood. We find no statements of the dealers and nor any other evidence has been cited by the Department in support of these allegation that whatever was manufactured was decorative plywood. No explanation is available as to why samples could not be tested e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944 on all clearances without even ascertaining quantum of such additional consideration. 8.3 As regards evidence against Durian Industries in the firm entries on the reversal of the approval slip seized from the premises of Durian Industries, statement of Shri Vipin Kapoor, the statement of Accountant and untitled price list do not justify adoption of higher price when the records were available to show the different type of goods cleared by the respondents. It was necessary for the officers to workout the actual assessable value on the basis of the provisions of Section 4 on the evidences gathered. In this case testing of samples and expert opinion and trade enquiry if were to be made as part of investigation would have helped the case of the Department. Further we also agree with the Commissioner that it was necessary for the Department to quantify the flow-back. When the approval slips indicated the exact amount to be collected from the customer, it is not known why those slips were not relied upon to workout the differential duty and also to Justify the demand by giving details of such approval slips with name of the concerned party etc. The evidences gathered do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. or by furthering investigation based on statements recorded, have all been frittered away and instead a demand of Rs. 2,0.1,16,733.36 has been raised by merely treating the highest of the prices as the normal price. I, therefore, hold that this demand of duty made in the show cause notice by treating the highest of the prices changed during each financial year as the normal price for all the clearances made during that financial year, is not sustainable on the basis of incomplete and incoherent evidence brought out in the show cause notice. 9. In addition to the above we also find that as rightly submitted by the learned Advocate for the respondents the observations of the Tribunal while considering the clandestine removal are relevant as regards the observations relating to testing, regarding improper maintenance of accounts and the observation regarding various transactions. Even though the learned Advocate for the respondents cited several decisions in support of his contention, we do not consider the same, since we find facts and circumstances, Department's appeal cannot be sustained. As regards submission of learned DR. that what is admitted need not be proved, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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