- (1.)Civil Appeal No. 5779 of 2004:
The present appeal has been preferred by the Revenue against the judgment and order dated 13-8-2003 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Northern Bench, New Delhi [: 2003 (158) E.L.T. 180 (Tri.-Del.). The factual matrix lies in a narrow compass. The Respondent-assessee is engaged in the manufacture of PTY Twisted Yarn falling under Chapter sub-heading 54.02 of the Central Excise Tariff Act, 1985 (for brevity, 'the Act'). On the basis of intelligence received by the officers of Anti Evasion directorate that the Assessee was indulged in evasion of central excise duty by resorting to undervaluation and clandestine clearances of PTY as it was clearing PTY from its factory gate at a very low value in the name of non-existing firms, while the goods were actually being cleared to godown at Bhiwandi (Maharashtra) and Surat (Gujarat) from where they are subsequently being sold through brokers to actual buyers at a higher value. The search and seizure was conducted and on the basis of search and seizure, a show cause notice was issued to the Respondent. After receipt of the show cause, an explanation was offered stating, inter alia, that the sale to the buyers at Bhiwandi had taken place at the factory gate and not at Bhiwandi as indicated in the show cause. It was further stand of the Assessee that normal price for sale to non-Bhiwandi buyers is available and, therefore, the entire show cause notice is based on the assumption that there is no factory gate sale which is unsustainable. In addition, it was set forth that the show cause notice did not indicate on what foundation the allegations have been made because the Assessee had invoices for a specific quantity and that specific quantity was delivered to the ultimate buyer and there was no part delivery. Under these circumstances, a prayer was made to drop the proceedings.

(2.)The Commissioner of Central Excise who is the adjudicating authority did not accept the submissions and repelled the submissions of the Assessee and opined that there was suppression; and there was undervaluation by the Assessee only to a limited extent. Be it noted, the Commissioner was more influenced by the factum that certain sales were made to genuine buyers and certain sales were made through a broker and the invoice showed name of other buyers.
(3.)Because of the aforesaid perception, he repelled the stand put forth in the show cause. The Adjudicating authority confirmed the demand of certain sum as duty and imposed the penalty accordingly.