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TMI Blog2013 (8) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... voices, thus not making it possible for Revenue to conduct inquiries at their end, by itself cannot be held to be a strong evidence to hold that all those clearances were with the brand name of ‘needle fold’. Prima facie a credit invoice to a person who cannot be located or to a person who denied receipt of the goods was more incriminating than goods sold on cash basis where the address of the buyer was found to be wrong - It was also not clear from which entries from which annexures were picked up to arrive at the value on which demand was upheld – Decided in favour of Assessee. - E/1908/2005 - A/640/2012-EX(BR)(PB) - Dated:- 30-5-2012 - Ms. Archana Wadhwa and Shri Mathew John, JJ. Shri Nikhil, Advocate, for the Appellant. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period they were using their own brand name needle grip . He also submitted that the brand name needle fold was being used by the appellant only in respect of 30% of their total manufacture. Based upon the above statement, the proceedings for confirmation of demand of duty to the tune of Rs. 5,07,199/-were initiated against the appellant resulting in confirmation of demand of duty and imposition of penalty on them vide order-in-original dated 12-2-2004. In addition, penalty was imposed on the proprietor also. 4. On appeal, the Commissioner (Appeals) took into consideration the retraction of said statement of Shri Dinesh Arora on 1-3-2001. The same was retracted by the appellant on 2-3-2001 submitting that at the time of visit of the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that sales tax numbers, name of each customer was available in the invoices issued by the appellant, in respect of credit sales and the Revenue were required to approach sales tax authorities and accordingly to record the statement of customers also. Inasmuch as the revenue has not found the customers and recorded their statement, which was easy job for the department, the mere allegation with regard to brand name of other persons to avoid duty is without any evidence. He also observed that wherever the identity of the customers was found available the customers has stated that they have no dealing with the appellant. As such, he held that since no steps for reaching at definite conclusion had been taken by the department, the mere allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, the statement of Shri Dinesh Arora stands proved to be wrong and incorrect. As such, reliance on the same very statement by Commissioner (Appeals) for confirming the balance amount of demand in respect of cash sales, cannot be appreciated. 8. As regards the fact of availability of branded goods in the appellants factory on the date of seizure, we find that Shri Dinesh Arora in his retraction statement has clearly deposed that the same were only being packed at the instance of his uncle who owned the brand name. His uncle Shri Gaurav Arora, partner of M/s. Milap Steel Industries owner of brand name needle fold has clearly deposed that he has not permitted any person to use his brand name. If that be so, we really fail to support the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - I have gone through the order recorded by Member (Judicial), the case records and the impugned order. I agree with the outcome of the order recorded by Member (Judicial) but for slightly different reasons, which I am recording. 11. The issue before the Commissioner (Appeals) was whether the appellant had manufactured and cleared goods with brand name of another person and if so how much of such goods were cleared. Commissioner (Appeals) has confirmed demand on goods sold on cash basis assuming that all such goods were manufactured and cleared with the brand name of another person. In cases where goods were sold on credit basis and where the buyers were not traceable Commissioner (Appeals) has held that the onus had shifted to the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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