Page 235 - ELT_1_1st April 2020_Vol 372_Part

2020 ] SHRI KRISHNA INDUSTRIES v. COMMISSIONER OF C. EX. & S.T., VADODARA-II 121

roneous and the same is set aside. We further hold that the valuation of the
goods in question being food supplements, not containing beef has to be done
under Rule 7 of the Valuation Rules (deductive method).
34. The absolute confiscation of food supplements containing beef is
upheld. The confiscation of food supplements not containing beef is also upheld
but are redeemable on payment of duty (already released provisionally). How-
ever confiscation of A4 copy paper is set aside.
35. We further hold that as no redemption fine has been imposed by
the Ld. Commissioner, the order of appropriation of the bank guarantee fur-
nished towards redemption fine is bad and accordingly the same is set aside. We
further direct that the said bank guarantee already encashed, shall be adjustable
with the amount of Customs duty payable, balance if any, with penalty.
36. In the facts and circumstances, we hold that the appellant M/s.
Balaji Overseas is liable to penalty under Section 112(a) read with Section 114AA
of the Customs Act. However, such penalty is restricted to 100% of the duty
sought to be evaded, as worked in terms of para 21 of this order. So far the penal-
ty on the partner Mr. Kshitiz Sharma is concerned, the same is set aside in view
of the penalty confirmed on the firm. So far penalty on M/s. Him Logistics under
Section 112 of the Act is concerned, we hold that they have not done any act of
omission or commission attracting the provisions of Section 112 of the Customs
Act. Accordingly the penalty on them is set aside.
37. Thus the appeal of M/s. Balaji Oversees is allowed in part, appeal
of Mr. Kshitiz Sharma and M/s. Him Logistics are allowed. The appellants shall
be entitled to consequential relief in accordance with law. The appellant shall
also pay the balance amount of duty and penalty, if any.
38. Thus, the appeals are allowed, in aforementioned terms.
(Pronounced on 6-11-2018)
_______

2020 (372) E.L.T. 121 (Tri. - Ahmd.)
IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD
[COURT NO. III]
S/Shri Ramesh Nair, Member (J) and Raju, Member (T)
SHRI KRISHNA INDUSTRIES
Versus
COMMISSIONER OF C. EX. & S.T., VADODARA-II
Final Order No. A/11030/2019-WZB/AHD, dated 28-6-2019 in Appeal
No. E/450/2011-DB
1
Valuation (Central Excise) - Charge of undervaluation of goods solely
based on statement of buyers not presented for cross-examination not sustain-
able in absence of any documentary evidence showing cash receipts from buy-
ers particularly when such statement inconsistent as they initially admitted
________________________________________________________________________
1 In appeal against this order, notice was issued by Supreme Court in 2020 (372) E.L.T. A25
(S.C.).
EXCISE LAW TIMES  1st April 2020  283