TaxTMI 
TaxTMI 
2014 (5) TMI 245
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....led by the Revenue against very same Order-in-Original, while all other appeals are filed by the assessee and various other parties on whom the penalties are imposed. For sake of brevity, we take up the facts as mentioned in Appeal No.E/12811/2013 of M/s Euro Decor Pvt. Ltd. (formerly known as M/s Subhnen Dicor Pvt. Ltd.) hereinafter referred to as main appellant. 3. The relevant facts that arise for consideration are that the Revenue authorities, on an investigation conducted in the factory premises of the main appellant, noticed that there was under valuation of the goods manufactured and cleared. During the search operation, certain incriminating records/documents were recovered in mahazars, statements of various dealers/sub-dealers, employees as well as the Director of the main appellant were recorded. On conclusion of investigation, the Revenue authorities entertained a view that the main appellant cleared goods without payment of appropriate Central Excise duty by grossly under-valuing the goods, in a way that they were showing only a part of the actual consideration in their invoices and collecting the remaining amount in cash; show cause notices were issued to the main a....
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...., he would take us through the relevant paragraphs of the Order-in-Original. After reading the relevant paragraphs, he would submit that the adjudicating authority has held categorically in Para No.47.4 that there is no evidence to support the case except the statements. He would then take us through the findings recorded by the adjudicating authority from Para 50 onwards of the Order-in-Original and submit that the adjudicating authority has worked out the differential duty liability on an allegation which was not in the show cause notice by apportioning the average of the presumptive under-valuation of the final products. He would submit that such an allegation was never there in the show cause notice; despite that, it is his submission that the quantification of under valuation based upon the findings that there was cash collection is also incorrect. He would draw our attention to the findings recorded by the adjudicating authority and submit that the statements which are relied upon by the adjudicating authority do not indicate that the dealers/sub-dealers had paid an amount over and above the invoice value directly to the main appellant or any of the employees. It is his submi....
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.... Gajera, Adv. appearing on behalf of all other appellants other than the main appellant and their directors adopts the submissions made by the earlier counsel and submits that invoking Rule 26 for imposing penalties on his all clients is incorrect. 8. Ld. Departmental Representative, on the other hand, while defending the order of the adjudicating authority for confirming the demand and imposing penalty, submits that the adjudicating authority had no other option but to confirm the demand by re-working out the duty liability based upon the evidences on record. It is his submission that there was definitely an under-valuation which was to the tune 60% of the value which was invoiced. He would draw our attention to various statements of the Directors of the main appellant and submit that they have accepted that there may be non-payment of correct Excise duty. He would also draw our attention to the various statements of the purchasers to indicate that the said purchasers had paid cash over and above the invoice value. While attacking the order for dropping the majority of the demand, it is his submission that the adjudicating authority has totally erred in dropping the demand. It ....
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....confirmation of demand of approximately Rs.88 lakhs, the adjudicating authority in his findings in Para 60 onwards has come to the conclusion that the main appellant had under-valued the goods. To come to such a conclusion, we find that the adjudicating authority has not recorded any acceptable reasoning as to how he came to such a conclusion. We find that in Para No.48.1 and 48.2, the adjudicating authority has recorded that under-valuation is alleged from the fact that the dealers and the sub-dealers had some price lists which when compared with the prices shown in the invoices raised indicated difference. We find that the reasoning given by the adjudicating authority seems to be incongruous in as much as all these dealers from whose premises the price lists were recovered did in the initial stages stated that these are the price lists of the main appellant but on cross-examination, clearly stated that the price lists were their own price lists and not the price lists of the appellant. We also find that the adjudicating authority while quantifying the differential duty as per Annexures E1 and E2 had worked out a presumptuous figure of under invoicing their final product as 60.46%....
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....e is no cogent and acceptable evidence which indicate that there is an under-valuation. We find that the statements of the dealers who initially agreed to have paid an amount over and above the invoice value were, in fact, in cross-examination stated that said amount in cash was paid by them for their business purposes to carpenter and the interior decorator in order to boost their sale is not countered nor there is an evidence howsoever remote, to connect such were made by the dealers/sub-dealers to the main appellant or their employees in relation to sale of finished goods. In view of the foregoing, we find that the Revenue has not made out any case in their appeal. 14. In our considered view, yet another angle to entire case is that the adjudicating authority had abandoned or let go of the allegations made in the show cause notice, cannot confirm demand on assumptions or presumptions and reworked out the assessable value, is the law which has been settled by this Bench in the case of Magna Laboratories Guj. Pvt.Ltd. in Final Order No.A/10017 to 10019/2014, dt.07.01.2014 wherein in Paragraph 11 & 12, we have held as under:- &n....