9911796707
TMI Blog2017 (7) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... s it emerges that the goods covered by trade invoice were different from the imported goods. He has further recorded that the tax auditor in report ‘3 CD’ has not mentioned anything about the appellant being engaged in the trading of the goods. The Department has alleged clandestine clearances on the part of the appellant by adopting the modus operandi of selling goods manufactured in the guise of imported / traded goods. Such a charge will need to be supported by tangible evidence regarding the manufacture of such goods in the factory. Appeal allowed - decided in favor of appellant. - E/57351/2013-EX[DB] - A/53857/2017-EX[DB] - Dated:- 8-6-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Technical Member Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared clandestinely in the guise of trading under the trade invoices on the sole allegation that imported goods did not bear Accentrix brand whereas the goods supplied under the Tarde invoices bore such brand name. 5. Reply to the aforesaid notice submitted countering the allegations made in the SCNs and categorically stating that the imported goods were being traded by the Appellant was given on 27.07.2009. At times, at the specific request of the buyers, the Appellant brand Accentrix was affixed on such goods. Further, the goods traded by the Appellant were not covered under the Third Schedule of the Central Excise Act, 1944 and there is no specific Section Note or Chapter Note to the Central Excise Tariff Act, 1985 deeming the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi for denovo adjudication, with the following direction in Para 8 of the order: 8. The stand taken in response to the show cause notice as above clearly discloses that though initially the appellant might have stated that the traded goods were not bearing the brand name. The reply to the show cause notice discloses the circumstances in which such traded goods were affixed with the brand name. Obviously, in such circumstance, it was necessary to ascertain whether the appellants were having necessary material in support of their contention that the goods in question were really traded goods unconnected with the manufacturing activity. Simultaneously, it was necessary for the department to place on record the material in support of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been clarified whether these assembling charges relate to manufacturing activities or to trading activities. 9. Aggrieved by the impugned order, the appellant has filed the present appeal. 10. With the above background we have heard Shri Hemant Bajaj, Advocate for the appellant and Shri H.C. Saini, DR for the respondent. 11. The main grounds on which the present appeal has been filed are summarized below. i) The matter was remanded to the Adjudicating Authority with specific directions for de-novo adjudication, but the Ld. Commissioner has not adhered to the remand directions. Even though the Tribunal directed the Adjudicating Authority to place on record the evidence in support of the charges that the traded goods were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the guise of traded goods, on the basis of their observation, that the trading invoice also covered goods with a brand name Accentrix . It is the claim of the appellant that manufactured goods were cleared bearing this brand name whereas the imported goods did not bear such brand name. In the first round of litigation before the Tribunal, the issue was remanded back to the Adjudicating Authority for de-novo decision after placing on record the material in support of the Department s contention that traded goods were actually manufactured goods. However, the Department attempted to re-investigation of the case by seeking details of the goods imported by the appellant. After considering the details of imported goods, the Commissioner uph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to enable them to rebut such evidence. The adjudicating authority observes that the model numbers of various goods appearing in the trade invoices are different from those appearing in the import of bills of entry. This by itself cannot be considered as sufficient evidence to uphold the charge that the appellant has indulged in manufacture and clearance without payment of duty. 15. The various case laws cited by the appellant emphasis the fundamental point that the allegation of clandestine clearance is a serious charge and will require to be supported by tangible evidence and the onus is on the Department to establish the charge. We are afraid that Revenue has failed to support the allegation with tangible evidence. Consequently, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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