9911796707
TMI Blog2003 (8) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... additional consideration has flown back from buyers which the Revenue has not satisfied. He has also held that payment by crossed bearer cheque cannot by itself suggest cash payment or excess flow back to manufacturer or an additional consideration over and above the cheque payment. So long as the Revenue has not been successful in proving that the actual buyer had paid an amount much more than the value shown in the invoice issued at the time of removal of the goods from the factory, the allegation of undervaluation should fail and no demand on that basis can be sustained. Since we hold that the entire demand is not sustainable, it is not necessary for us to refer and consider in detail the contention raised in the appeals by the Revenue c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging Order-in-Original No. 28/01, dated 30-8-2001. The same order is under challenge at the instance of the assessee in E/2788/01-A. E/1610/03 is filed by the Revenue challenging Order-in-Original No. 29/01, dated 31-8-2001. Same order is challenged by the assessee to the extent it is aggrieved by it in Appeal E/2788/01-A. Since issue involved in these cases is one and the same, we are disposing of these appeals by a common order. 2. Before we go into the contentions raised by the parties we may point out that another learned Commissioner had occasion to consider identical issues in a batch of adjudication orders where he has dropped the demand under show cause notice in toto. Appeals filed by the Revenue against those adjudication orders a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount payee cheques. Sale realisation shown in the sale ledger is from bogus buyers whose names appear in the invoices and not from actual buyers while delivery from godown was given to actual buyers and not to those shown in the invoices. It was then proposed to compute the value on the basis of the bank statements furnished by the manufacturers to the bank for claiming credit facility. 4. The Commissioner took the view that as far as Bhiwandi sales are concerned there is no factory gate sale and therefore, there is no normal price under Section 4. He took the view that since the name of the buyer is fictitious the definition of buyer under Section 4(1)(a) cannot be satisfied. It is then pointed out that the show cause notice has not invoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in every month. Since show cause memo makes a month wise calculation leading up to differential duty calculation for a financial year, the Commissioner held that proper allowance has to be given for those months where results go in favour of the assessee. The Commissioner also found that demand wrongly included duty on captive consumption and factory gate sales. 5. The Commissioner rejected the proposal in the show cause notice on the basis of comparison of the price of a unit of M/s. Reliance Industries. Commissioner therefore upheld only a portion of the demand in the show cause notice. He dropped the proposal for confiscation of land, plant and machinery and imposition of penalty on the Managing Director and the transporter. 6. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Commissioner had failed to appreciate that admittedly each invoice was for a specific quantity and that specified quantity was delivered to the ultimate buyer and there was no part delivery. Under these circumstances there was no justification for holding that the assessees were guilty of undervaluation. 6. On going through the orders impugned we find that the only basis on which the Commissioner has accepted the allegation of undervaluation is the bank statement. We are of the view that bank statements given by the assessee for the purpose of getting credit facilities cannot be the sole basis for arriving at a conclusion that there was undervaluation in the invoice. The extent to which such statements made by the assessee can be reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of cable was done by them. The bank had forwarded 12 stock statements submitted by the assessee. The assessee had denied manufacture of wires and cables. The Tribunal took the view that letters received from the bank cannot be relied on to come to the conclusion that the assessee had manufactured wires and cables without any corroborating evidence. 7. In the light of the above authorities we hold that bank statement by itself cannot be the basis for holding that there was undervaluation. It is relevant to note that the Commissioner held that "although this is a case of alleged undervaluation, there is absolutely no whisper of any evidence of flow back of additional consideration from the buyer to the manufacturer, either directly or throu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
