Full Judgment
Thus, the appeal seeks confirmation of the entire duty amount as proposed in the show cause notice. The ground taken for the enhancement is that since the Adjudicating authority had upheld the charge of evasion of duty as made in the show cause notice and had found that the appellant had cleared dutiable furniture in the guise of exempted Window Shutters, the Adjudicating authority was not correct in confirming duty demand at a lower amount.
2. The duty demand was confirmed by the adjudicating authority at a lower amount with the following observation : "26.5 As far as the calculation of duty is concerned, on examination of the Annexure to the Show-cause Notice, I find that the duty slab rates were worked out, taking into consideration, the clearances of goods described as Window Shutters, which are exempted and for which no contrary evidence is found, in each year. This does not appear to be correct inasmuch as bona fidely genuine/uncontradicted clearances of fully exempted goods has to be deducted calculating the aggregate clearances each year. In respect of invoices where there is no corroborative/supporting evidence indicating mis-declaration of the goods, the clearances have to be taken on their face value inasmuch as the invoices were describing the goods as Window Shutters etc., which are fully exempted and against which there is no contrary evidence and therefore, these cannot be taken into consideration while arriving at the aggregate values. Accordingly, the duty slab rates have been worked out afresh and the differential duty payable by the assessees is also worked out vide Annexure A to this order".
The contention in the appeal is that since the Commissioner had accepted the allegation in the show cause notice as established, that by adopting the modus operandi of misdeclaring the goods duty evasion had been carried out, he should have consequently confirmed the entire duty demand.
3. We have perused the records and have considered the submission made by the learned SDR. Respondents have not appeared for hearing despite Notice. They have also not filed any defence reply. It is observed that the respondents had filed appeals against the same order, being Appeal Nos. E/1279 and 1280 of 1998 and those appeals were dismissed under Final Order Nos. 758-759/2000, dated 8-6-2000 of the South Zonal Bench, Chennai of this Tribunal, for failure to comply with the requirement for pre-deposit of amounts as ordered under Section 35F of the Act.
4. While the Revenue is right in their submission that the Commissioner has upheld the charge of misdeclaring dutiable furniture as exempted Window Shutters and clearing them without payment of duty, it need not follow that evidence on record is sufficient for confirmation of the entire duty demand raised in the show cause notice. The Commissioner has discussed in detail the evidence available on record in respect of each supply before determining the amount of duty evaded. It is after such weighing of evidence that the Commissioner has determined that the demand should be limited to instances where there is corroborative evidence indicating misdeclaration of the goods. He has also allowed them the benefit of small scale exemption. From the impugned order, it is noted that the appellant had raised serious objections to the quantification of duty demand made in the show cause notice by pointing out that the appellant had a limited number of workers (9 persons), their entire machinery was worth only Rs. 11 lakhs and their power consumption was too little. It was their submission that these factors would make it clear that such a huge quantity of production as alleged in the show cause notice was not practicable with the limited resources of the appellant.
5. The substance of the Revenue's appeal is that the Commissioner had not correctly appreciated the evidence inasmuch as the entire demand has not been confirmed despite upholding the charge and the modus operandi adopted for evasion of duty. The appeal, however, does not show how there was evidence to show that all the consignments cleared as Window Shutters had actually been clearances of dutiable goods of that value. Instead, it is a bald assertion that once the modus operandi as alleged had been found to be resorted to by the respondents, all the clearances of window shutters should have been held as clearances of dutiable furniture, without the requirement for any corroborative or confirmative evidence. We are not able to accept the Revenue's claim. As observed earlier in this order, the Commissioner has discussed the evidence in regard to various supplies and limited the duty demand to cases where supply of dutiable goods had been corroborated. We are of the opinion that the approach of the Commissioner is not to be faulted in the facts of this case.
6. In view of what has been stated above, we are of the opinion that no interference is called for in the present case. Appeal of the Revenue fails and is dismissed.