TaxTMI 
TaxTMI 
2010 (1) TMI 442
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....o the level of Commissioner (Appeals), have finally reached the Tribunal. The Revenue is in appeal against the order of the Commissioner (Appeals) who has held that in absence of any evidence of under valuation by the appellants produced by the Revenue, the admitted differential duty payable worked out as Rs. 18,01,878/- should be accepted. 2. Heard both the sides. Learned DR submits that in this case, the value has been determined by the adjudication authority in the case of respondents on a notional basis since appellants did not produce the required details for the purpose of finalization of the value on cost construction basis. Since it was the appellants who did not cooperate with the department, department had no option but to fina....
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....icating Authority simply rejected the calculations made by the appellants on the ground that arriving at quantities by average method cannot be accepted. Further, he also said that the claim of non-availability of records at this stage was not acceptable. He submits that as rightly held by the Commissioner (Appeals), when under valuation is alleged, it is the responsibility of the department to prove the same and the Department cannot require the appellants to produce records after a long time. 4. We have considered the submissions made by both the sides. We find that in this case the Commissioner (Appeals) has considered the issue in detail and passed a very well reasoned order. The relevant portions of the findings are reproduced below....
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....bitrary and value arrived and are highly inflated and the Apex Court in such cases has directed the department to give legitimate business consideration while arriving assessable value as laid down in the case of Basant Industries v. Additional Collector - 1996 (810) E.L.T. 195 (S.C.) and Philips India Ltd. v. Collector -1997 (91) E.L.T. 540 (S.C.). For which the appellants have taken quantity of Pigments Emulsion cleared by them during the year 1983 to 1985 to arrive at what could be the quantity and duty of pigments emulsion/binder manufactured/cleared by them during the period covered by the show cause notices. From the record for the period from 1995-96, the production and clearance figures of manmade fabrics and cotton fabrics have bee....
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....the duty confirmed which comes to Rs. 1,80,188/- as also laid down in the case of Prem Pharmaceuticals v. CCE, lndore reported in 1996 (88) E.L.T. 278 (Tri.), which will meet the ends of justice." 5. Even though we find ourselves in full agreement with the contention of the learned DR that the principles for arriving at cost of goods where there is no sale should be as per CAS-4 and it would be applicable to the past period also, we do not find that it would be ­appropriate in this case to remand the matter back to the Original Adjudicating Authority in view of the fact that admittedly no records are available. Department has failed to arrive at proper cost and there are no observations as to what were the defects in the cost constru....