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TMI Blog2014 (3) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... ation no..49-50/03 as amended. Above transaction could not be possible without Shri Ramesh Gupta who organized paper transaction with sole motive to avail benefit of area based exemption. I have no hesitation to hold that findings of Commissioner (Appeals) are erroneous as the Commissioner (Appeals) held that no doubt two machines actually supplied which were found installed in the factory. These observations are without any evidence and contrary to the investigations reported above. His basis for saying that no action has been taken against supplier for mis-declaration cannot ipso-facto result in granting unintended and fraudulent benefit to the respondent - Revenue has clearly made out a case for non-grant of exemption under Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the state of Himachal Pradesh under area based exemption scheme. In this case, two machines were received by the respondents from M/s.R.S.Engineers, Faridabad indicating them as new machines. However, later it was found that second hand machines were used for showing expansion of installed capacity by 25% which was requirement of the notification. 4. On investigation undertaken by the department, it was found that the machines were not new and these were old one and it was misdeclared by the respondent. This was detected on the basis of enquiry conducted from the seller situated at Faridabad and it was found that the manufacture/supplier of Faridabad did not have capacity to manufacture impugned machines. On enquiry, the supplier in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effected the clearances at nil rate of duty from 15.9.2004 and the value of clearances of plastic tanks is Rs.78,48,233/-, Rs.39,66,031/- of pipes and Rs.70,818/- of scrap by availing said exemption. (ii) That the Commissioner (Appeals) has not taken into account the fact that M/s.R.S.Engineers, Faridabad has no capacity/machinery to manufacture the machines in question. Therefore, the question of supply of these machines to the respondent No.1 does not arise. (iii) That Commissioner (Appeals) ignored the fact incorporated in the statement of Shri Rajbal Singh, Proprietor of M/s.R.S.Engineers, Faridabad that under the bills in question, he has despatched only dies as mentioned in his original bills, entries of which was reflected in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, from the perusal of the grounds of appeal filed by the department, it comes out that Revenue has made elaborate investigations from the supplier of machines namely M/s. R.S. Engineers, Faridabad regarding supply of two machines to the respondent. During investigation, they have found that the respondent did not have capacity to manufacture machines mentioned in Bill No.271 272. It has also came out that impugned bills were prepared at the instance of Sh. Ramesh Gupta, partner of M/s. Swati Storewell. Shri Rajbal Singh, proprietor of R.S. Engineers in his statement admitted that under these bills, he has dispatched dies and not machines. He also admitted that he was paid an amount of Rs.one lakh which was against sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocured have no legs to stand in the face of detail enqury conducted by revenue exposing clearcut evidence. 9. It is also noticed that Range staff of Parwanoo-II have visited unit on 28.6.2005 and 30.6.2005 for verification of machines and it was found that no marking or other features showing the manufacturer on the two machines. It has also come on record that Respondents have tried to manipulate bank account as they have taken bank loan showing purchase from M/s. R.S. Engineers which was proved to be fake transaction. Connivance with bank authorities is also revealed. 10. It is also observed that Commissioner (Appeals) has not appreciated finding of adjudicating authority where investigations conducted by department have clearly br ..... X X X X Extracts X X X X X X X X Extracts X X X X
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