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128 EXCISE LAW TIMES [ Vol. 372

from the invoice format of the Appellant and there is no corroborative evidence
of transportation of goods. The cheque number through which the payment has
been shown to appellant has been refused by the appellant and no further inves-
tigation was conducted. In case of other 5 parallel invoices, the buyers of the
goods have refused receipt of any goods. The officers had recorded the statement
of Shri Samir Parekh, the proprietor of the appellant concern who also has re-
fused supply of goods and issue of parallel invoice. In such case we do not find
any reason to uphold the demand against the appellant.
12. Notably we find that the investigation against the appellant was
conducted along with number of frit manufacturers. All such manufacturers in-
cluding the appellant were issued show cause notices. The allegations against all
the manufacturers were based upon identical investigation and manner. The al-
legation of undervaluation and excess consumption of fuel were based upon
same investigation. The demands in case of other manufacturers were also con-
firmed and they approached the Tribunal. The Tribunal vide Final Order No.
10541- 10571/2015, dated 12-5-2015 in case of Belgium Glass & Ceramics Pvt. Ltd.
v. Commissioner set aside the demands. The Revenue filed appeal before the
Hon’ble High Court of Gujarat who dismissed the appeals filed by the Revenue
as reported in Commissioner v. Belgium Glass & Ceramics Pvt. Ltd. - 2017 (356)
E.L.T. A46 (Guj.). Even otherwise we find that in present case the demands are
merely based upon assumption and surmises. There is no evidence of any excess
purchase of raw materials or excess consumption, no excess raw material was
found at premises, no finished goods alleged to have been cleared clandestinely
was seized, no evidence of transportation of any clandestinely removed goods
was found. Further no evidence in the form of statement or record of any trans-
porter, payment of unaccounted freight, statement of any labour receipt of con-
sideration in cash was found either through Angadia or any person. The evi-
dence in the form of books of accounts or any documents showing such under-
valued consideration or clandestinely removed goods has not been brought on
record. The present case thus stands even on better footing than the case of Bel-
gium Glass & Ceramics Pvt. Ltd. stated supra as not a single evidence against the
appellant could be found.
13. A demand of Rs. 62,67,000/- has been made against the appellant
on the ground that after addition of the value of undervalued and clandestine
removal, the sale value of the appellant crosses the SSI Exemption limit and the
appellants are not entitled for SSI Exemption in respective years, hence the de-
mand. We find that since as per our above findings, the charges of undervalua-
tion and clandestine removal of goods are not sustainable against the appellant,
hence there is no reason to deny them the benefit of SSI Exemption. The subject
demand is therefore not sustainable.
14. Thus in view of our above observation and findings we hold that
the demands made against the appellant is not sustainable and accordingly the
impugned order is set aside. The appeal is allowed with consequential reliefs, if
any.
(Order pronounced in the open Court on 28-6-2019)

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