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TMI Blog2018 (3) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no corroborative evidence on record to substantiate the stand of the Department that the goods reflected in the diary titled as “MONARK” were clandestinely cleared. The Department also has not carried out investigation regarding the purchase of extra raw material required for manufacture of such additional quantity of Unit-I. During the verification of record at Unit-I and Unit-II, no discrepancies have been noticed in respect of quantity of raw material or finished goods vis-a-vis the statutory documents - the charge of clandestine clearance cannot be upheld only on the basis of the seized private record especially in view of the fact that the statements admitting clandestine clearance of such goods stand retracted. Appeal allowed - decided in favor of appellant. - Excise Appeal Nos. 50831, 50832, 50833 & 50834 of 2017 - Final Order Nos. 50949 – 50952/2018 - Dated:- 14-3-2018 - Hon ble Mr. Justice ( Dr. ) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member ( Technical ) Sh. Rupesh Kumar, Advocate for the Appellant Sh. R. K. Mishra, AR for the Respondent ORDER Per: V. Padmanabhan These appeals are filed against the Order-in-Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside and the matter has to be remanded to the Commissioner for denovo adjudication after considering the appellant s plea that during the period of dispute, other importers had imported similar goods in comparable quantities at the prices which were comparable with the DTA prices adopted by them and if this is so, there would be no justification for rejecting the DTA sale price on which the duty had been paid by the appellant. 8. As regards the duty demand of ₹ 14,46,613/- against the unit-I based on the allegation of clandestine removal, this demand is based on entries in the diary recovered from the store keeper, Sh. Satyanarayan, of the DTA unit. The grievance of the appellant is that the photocopy of this diary has not been supplied to them. In view of this, we hold that this duty demand is also not sustainable and the matter has to be remanded to the Commissioner for denovo adjudication after supplying a copy of this diary to the appellant, and taken into account their submissions in respect of the same. 9. The impugned is, therefore, set aside and the matter is, therefore, remanded for denovo adjudication as per our directions in the order. In course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Sh. Satyanarayanan, Store Keeper but he has not been examined. Even though, his statement was recorded, the same has not been made available to the appellant. The Department cannot prove the contents of the diary by relying upon the retracted statements of others. In any case, he submitted that no evidence has been brought in the show cause notice to show the quantity of raw material obtained by the appellant for manufacturing and clearing the quantities alleged in the show cause notice. 6. Ld. AR appearing for the Revenue justified the impugned order. He argued that Unit-I and Unit-II belong to the same company with the combined balance sheet and hence clearance of goods from Unit-I to Unit-II has to be considered as related person clearance. He argued that the appellant has failed to give any documentary evidence for the correct value of the goods cleared from Unit-I to Unit-II. With reference to the charge of clandestine clearance, he specifically referred to paragraph 49-50 of the impugned order and submitted that Shri Kailash Kumar Sharma, Manager Commercial Authorised Signatory of Unit-II in his statement has admitted the receipt of goods shown in the chart without co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant and found that the clearance from Unit-I to Unit-II were undervalued. But the appellant has strongly contended that the cited import were only for import of samples and the consignment was only for 200 to 500 nos. whereas the quantity of goods cleared into DTA is in lakhs. The comparison of values can only be made in respect of consignments which compares in terms of identity of the goods as well as the quantity of the transaction. Hence, we find that this comparison is not a valid basis for rejecting the transaction value. 11. It is settled position of law that unless the transaction value is rejected for valid and cogent reasons, the value of the imported goods cannot be re-determined. It has been held by the Hon ble Supreme Court in the case of CC, Calcutta vs. South India Television (P) Ltd. 2007 (214) ELT 3 (SC) that before rejecting the transaction value as incorrect or inacceptable, the Department has to find out whether there are any imports of identical goods or similar goods at a higher price at around the same time. Unless the evidence is gathered in that regard, the question of rejecting the transaction value and determination of value as per Valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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