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6. With regard to the confiscation of the Jaw Curshers seized on 20.04.2010 on the ground of misdeclaration of size and undervaluation. It is her contention that the order was placed 8 months back at that time price was lesser and there is no investigation was conducted to allege undervaluation and to ascertain the fact that whether M/s AAR Kay received over and above the amount charged in the invoices. Therefore, the charge of undervaluation is not sustainable. Consequently, the goods are not liable for confiscation. She further submits that the transaction value is to be treated as cum duty price and transaction value is available with the department and has to be treated as the cum duty price. It is her further submission that the show cause notice has alleged undervaluation of five invoices which were issued to Technocrafts by M/s Harish Engg Works and M/s Mahalaxmi Engg Works. The said allegation is based on the statement of Shri Ashwani Mehta wherein it has been stated that the Appeal No. E/812-813,822/2012 differential amount over and above the invoices was paid in cash. It is her submission that the two invoices issued by M/s Harish Engg Works are dated 11.09.2009 and 13.01.2009, these invoices do not mention the size of the machines and three invoices are issued by M/s Mahalaxmi Engg Works wherein no size of the machines was written. Size of the machines cannot be verified as the goods are available. Moreover, Shri Sumit Mehndiratta, Shri Ramesh Mehndiratta and Shri Harish Kumar were not confronted with the statement of Shri Ashwani Mehta. Therefore, without any corroborative statement of Shri Ashwani Mehta, the charge of undervaluation is not sustainable.

23. In view of the above analysis, we hold that the clearances made M/s Maa Laxmi Indt. Hardware Store cannot be clubbed with the clearances of M/s AAR Kay in the absence of any positive evidence on record.

24. We further take a note of the fact that the redemption fine of Rs. 4.00 Lacs has been imposed on M/s AAR Kay industries alleging that misdeclaration of size and value of the jaw crushers seized on 20.04.2010. We find that the allegation is of undervaluation based on the clearances of other jaw crushers cleared by M/s AAR Kay during the relevant time. No investigation was conducted with the buyer whether the buyer has agreed on the said price or has paid any amount over and above the invoices price shown by M/s AAR Kay. Moreover, the appellant has contended that the appellant received the order for the said machines was given by the buyer eight months back and the machines could not be supplied in time, therefore, they have charged less price to compensate the buyer. The said defence taken by the appellant has not been contraverted by investigating the buyer. In that circumstances, the charge of undervaluation has not been proved with tangible evidence. In that circumstances, the charge of undervaluation is not sustainable. Consequently, no redemption fine can be imposed on M/s AAR Kay Industries. Consequently, the redemption fine of Rs. 4.00 Lacs is set-aside.

25. We further take a note of the fact that the allegation has been made of the undervaluation on the invoices cleared by M/s Harish Engg Works Appeal No. E/812-813,822/2012 and Mahalaxmi Engg Works, we find that as the clearances made by M/s Harish Engg Works cannot be clubbed with the clearances of M/s AAR Kay and all the clearances made by M/s Harish Engg Works remained with SSI exemption limit. Therefore, the charge of undervaluation on the invoice M/s Harish Engg Works is not sustainable. With regard to the three invoices issued by M/s Mahalaxmi Engg Works, we find that the charge of undervaluation has been made only on the basis of the statement of buyer Shri Ashwani Mehta, Proprietor of M/s Techno Crafts, but no evidence has been brought on record to prove that the said charge of undervaluation. Moreover, the appellants were never confronted with the statement of Shri Ashwani Mehta to corroborate the charge of undervaluation and Shri Ashwani Mehta was not issued any show cause notice to allege aiding and abating the payment of duty, the statement of Shri Ashwani Mehta is doubtful and can't be relied upon. In that circumstances, due to lack of evidence on record, the charge of undervaluation is not sustainable.