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TMI Blog2017 (9) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... rect import at Noida. Accordingly, the allegations leveled in the SCN are not proved against the respondents. The evidence on record have been relied upon selectively in view of the statement of Shri Lalwani which is relied upon, who categorically stated that no activity other than inspection is carried out at Noida. It has to be treated as valid evidence in favor of the respondent as evidence in the whole has to be read and not relied on in part, which is suitable to Revenue. Appeal dismissed - decided against Revenue. - Appeal No. E/1300/2008 –EX [SM] - Final Order No. 70817/2017 - Dated:- 17-7-2017 - Mr. Anil Choudhary, Member ( Judicial ) Shri Gyanendra Kumar Tripathi (AC) AR for Appellant Shri Kartikeya Narain (Amicus Curiae) Adv. for Respondent ORDER Per : Anil Choudhary The issue in this appeal by Revenue is whether the Learned Commissioner (Appeals) have rightly allowed the appeal of the respondent against Order-in-Original passed by the Additional Commissioner, ordering for confiscation of goods valued at ₹ 31,49,742/- under Rule 25 of CER, 2002 with option to redeem and also imposed penalty ₹ 5 lakhs on the appellant along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring it off which indicated that it was ready for marketing. On opening the cartons, two additional stickers of SI. No of the set and Ok Passed were found pasted on the body of the DVDs. The sticker of SI. No. on the body of DVD set and on its carton was same. 3. On further opening of both type of sets, described at Stage-I and Stage-II, above, by unscrewing the top cover it was found that in the set bearing Ok Passed sticker and SI. No. sticker, Small stickers with some code No. MIT 0105 were found pasted on the major components, whereas in the set detailed at Stage-I above, no such stickers were seized. On query, it was revealed that this code denotes the month and year. 4. Further, in the testing room some DVD players were found lying in SKD condition fitted with power points, said to be in process of testing and repairing, if needed. All the stickers appearing on the finished sets as detailed in Stage-II above were recovered in the premises in abundance. Description of the stickers is detailed as below: A. Sticker on major parts: Sticker bearing code viz. MIT 0105 indicative of month year. B. On the body of the product: Sticker of running SI. No. and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r enquiry was conducted from Shri Vinay Kakkar, inspection engineer, who in his statement under Section 14 of the Central Excise Act, 1994 has categorically stated that they packed the DVD/VCD player after testing. He also admitted that they put a Sticker of SI. No. and Sticker of month and year. He also admitted that sticker of month and year was pasted on lens, exterior backside, MPEG card IC inside the set. Further statement of Shri Subhash Lalwani was recorded on 09/09/2005, wherein he was asked to explain whether the DVD/VCD players and music systems in combi form were sold as a unit and also whether the same is packed in a single packing. Shri Lalwani stated that they are importing DVD/VCD players/multimedia speakers/home theatres speaker and also selling the same separately. He also stated that on specific demand from the market only few units are sold in combo form as the unit and packed in a single unit. 8. Accordingly, it appeared to Revenue that respondent is importing DVD/VCD the player separately (not in combo form) and packing the same as single unit for selling the same in combo form and also putting the sticker showing MRP of combo form as stated in the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals and as such prays for dismissing the appeal by Revenue. 11. The Learned AR, for Revenue relies on the Order-in-Original and further reiterates the grounds of appeal urging among others that the Learned Commissioner (Appeals) have earned in observing that there was no evidence to show that the VCD/DVD players were imported by respondent directly at Noida. These findings seem to be not proper in view of the statement dated 18/08/2005 of Shri Subhash Lalwani, wherein answer to question No. 2 is stated. He categorically admitted that they were importing goods directly at the Noida address. Further, during the course of inspection it was found that very effectively stage testing, labeling/relabeling, repacking and affixing of MRP stickers was being carried out. Such fact was admitted by Shri Shyam Narayan, supervisor who was present at the time of inspection. Although the respondent claimed that the entire stock of DVD/VCD was imported by them at Parwanoo, but they did not submit the related bills of entry in respect of the entire stock of VCD/DVD found at Noida premises at the time of checking. As per the two bills of entry, the DVDs were imported at Parwanoo, account for onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be drawn that all the goods seized, which were found in complete form, could be regarded as manufactured at Noida, more so in view of the contrary report of investigation carried out at Parwanoo unit. Moreover, I find that the evidence on record have been relied upon selectively in view of the statement of Shri Lalwani which is relied upon, who categorically stated that no activity other than inspection is carried out at Noida. It has to be treated as valid evidence in favour of the respondent as evidence in the whole has to be read and not relied on in part, which is suitable to Revenue. Similarly the statement of Shri Vinay Kakkar have also been relied upon selectively so as to omit important point like the goods arrive from Parwanoo, with MRP, name and address labels fixed/printed on boxes. 13. Accordingly, in view of the aforesaid finding and observations, I confirm the impugned order in appeal and dismiss appeal by Revenue. The respondent assessee shall be entitled to consequential benefits, if any. This Tribunal also appreciates the assistant provided by Shri Kartikeya Narain(Adv.) as amicus curiae. ( Dictated Pronounced in Court ) - - TaxTMI - TMITax - C ..... 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