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TMI Blog2015 (6) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... artment. Some buyers were taking directly and some sales were made through the brokers. However, the invoices used to be raised in the name of certain buyers. This practice was prevalent since long even when the Excise was not leviable. That apart, it is noticeable that there is no finding that the price that was collected in respect of the items, whatever grade or size may be, from the genuine buyers or the broker, were different and moreover, the duty has been paid at the gate at the same rate at the time of transit on the same quantum. The allegation of the Revenue against the assessee is that the broker used to sell it to a third party at a higher price. It is also reflectible that the adjudicating authority has placed reliance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was indulged in evasion of central excise duty by resorting to undervaluation and clandestine clearances of PTY as it was clearing PTY from its factory gate at a very low value in the name of non-existing firms, while the goods were actually being cleared to godown at Bhiwandi (Maharashtra) and Surat (Gujarat) from where they are subsequently being sold through brokers to actual buyers at a higher value. The search and seizure was conducted and on the basis of search and seizure, a show cause notice was issued to the respondent. After receipt of the show cause, an explanation was offered stating, inter alia, that the sale to the buyers at Bhiwandi had taken place at the factory gate and not at Bhiwandi as indicated in the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se by the Department to prove any flow back which would justify rejection of the invoice value. The Commissioner has observed that even though there is an allegation that time lag between the clearance date and actual sale is about seven days to one month and on the date of actual sale the sale price is more than that was shown in the invoice no facts and figures have been furnished to support this allegation. He has further observed that assuming that sale price at depot was on a higher side even then there is no justification for taking recourse to Valuation Rules as was proposed in the show cause notice. The Commissioner has correctly held that only in those cases where it can be demonstrated that the provisions of Section 4(1)(a) are in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. In Punjab Oil Silicate Mills, the Department while alleging clandestine manufacture and removal of the goods relied on the figures furnished by the assessee to the Department of Industries or as admitted by the party in their affidavits filed before the Department for getting the coal. The Tribunal took the view that any information obtained from the Department of Industries is not sufficient proof to show that the goods were manufactured unless it was substantiated with other evidence of clandestine removal of the manufactured goods. It was also held that even admission, confession or sworn statement given by the appellants before other authority in different context for different purpose cannot be taken as conclusive proof in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, on the basis of the reasoning which have been reproduced above, dismissed the appeal of the Revenue. 8. We have heard Mr. A.K. Panda, learned Senior Counsel along with Mr. Arijit Prasad for the Revenue and Mr. V. Sridharan, learned Senior Counsel for the respondent. 9. On a perusal of the order passed by the Commissioner and that of the Tribunal, it is luminescent that the assessee used to sell the PTY Twisted Yarn, the manufactured item to number of buyers as has been found by the Department. Some buyers were taking directly and some sales were made through the brokers. However, the invoices used to be raised in the name of certain buyers. This practice was prevalent since long even when the Excise was not leviable. That ..... X X X X Extracts X X X X X X X X Extracts X X X X
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