Page 249 - ELT_1_1st April 2020_Vol 372_Part

2020 ] SYNERGY STEELS LTD. v. COMMISSIONER OF CENTRAL EXCISE, ALWAR 135

freight charges cannot be accepted. After placing reliance RUD 2.4.3A, the adju-
dicating authority observed that the some amount received over and above the
invoice value and remitted back to the appellant. It was submitted by the
Learned Advocate that this document which was submitted as Annexure-A to
the show cause notice were not enclosed with the departmental appeal initially
and has been handed over to the appellant only in August, 2018, that was as An-
nexure B to the department’s letter. However, it is the submission of the Learned
Advocate that this Annexure cannot be relied upon as the GRs referred therein
are not part of the RUDs.
10. The grounds in the departmental appeal also refers to the statement
of Shri Mohan Ram, Business Manager, MBSC, recorded on 15-11-2011, wherein,
he has allegedly stated that under-invoicing was done by the appellant to the
extent of Rs. 5/- to Rs. 10/- per kg. This issue has been analysed in the impugned
order, however, the same has not been contested by the department. It is also
submitted that from the similar evidence, the Commissioner has confirmed the
demand through M/s. Jai Bhawani Concast (P) Ltd. He should not have adopted
a different view for different dealers. The department has prepared a chart en-
closed as ‘Annexure B’ to the appeal to show that the value arrived at on the ba-
sis of private documents, are the same for both the entities i.e. M/s. JBCPL and
M/s. MBSC. Since the demand in respect of M/s. JBCPL has been confirmed the
same should have been done in case of M/s. MBSC. However, it is the submis-
sion of Learned Advocate that no such Annexure B is enclosed with the appeal.
Adequate opportunity was given by the Bench to produce this Annexure, but the
same was not produced. It was also submitted by Learned Advocate that sales
done by M/s. JBCPL and M/s. MBSC cannot be compared as those are different
entities and had different market, which varies from one place to another. The
department’s appeal, as per Learned Advocate, is based on price of SS flats sold
by the appellant to M/s. MBSC, which were higher than the sale price of SS flats
by other manufacturers at Jodhpur, which indicated that sale price was not cor-
rect. This ground is not acceptable as the market for the product are different and
the prices from place to place by dealers the dealer are same cannot be compara-
ble with one another. The department is being selective as the Commissioner has
dropped the penal proceedings against M/s. MBSC and Shri Sanjay Garg. This
part of the order has not been challenged by the department and, therefore the
Learned Advocate submits that the departmental appeals has no leg to stand and
deserves to be dismissed.
11. On behalf of the Revenue Learned AR supported the order passed
by Learned adjudicating authority on the ground mentioned to the extent of con-
firmation of demand to the appellant. Further, the demand dropped by the adju-
dicating authority regarding MBSC he supports the grounds contained in the
Review Order.
12. We have heard the party and perused the record.
13. The issue involved in this case are regarding undervaluation of fin-
ished goods by the appellant sold through M/s. JBCPL and M/s. MBSC and
shortage of finished goods during the stock taking at the factory premises by the
DGCEI officer, including those of taking irregular Cenvat credit on the basis of
four supplier of the scrap without accompanying of the goods. We find that de-
mand of Rs. 40,76,894/- has been confirmed on the basis of certain loose
slips/pages relied upon by the Revenue which were resumed from Shri Raman

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