ORDER : 1. The appellant-assessee herein had imported certain goods from time to time and had cleared the same after paying customs duty. In the Bill of Entries for import of these various goods, certain values were declared. There was search in the premises of the appellant and others connected with the appellant by the Revenue wherein various incriminating documents were seized by the Department. On scrutiny of these documents, the Revenue found that the assessee was clearing the goods by mentioning lesser value of those goods and, therefore, as per the Revenue, it was the case of undervaluation which resulted in the lesser payment of custom duty. 2. Show Cause Notice was issued to the appellant pertaining to various goods in respect of which four charts, viz. Charts A, B, C and D, were prepared and in these charts the details of the goods imported from time to time were given. The assessee replied to this Show Cause Notice. Ultimately, the Commissioner passed the order confirming the demand in respect of Charts A and B. As far as Chart C was concerned, the demand in respect thereof was also confirmed but it related to M/s. Instronics Ltd. The demand in respect of Chart D was dropped by the Commissioner. M/s. Instronics did not file any appeal and, therefore, demand in respect of Chart C became final. The assessee filed appeal in respect of Charts A and B. This appeal has been dismissed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as ‘CESTAT’). The Revenue also filed appeal against the order of the Commissioner insofar as it related to dropping of the demand pertaining to Chart D. In that appeal, the CESTAT has remitted the case to the Commissioner for fresh adjudication on certain grounds, as would be noted hereinafter. 3. The assessee, in these circumstances, filed appeal against the order of the CESTAT. However, this Court admitted the appeal only in respect of goods described in Chart D. Therefore, we are concerned with the validity of the order passed by the CESTAT relating to Chart D alone. 4. 3. The assessee, in these circumstances, filed appeal against the order of the CESTAT. However, this Court admitted the appeal only in respect of goods described in Chart D. Therefore, we are concerned with the validity of the order passed by the CESTAT relating to Chart D alone. 4. As far as consignments, details whereof are mentioned in Chart D, the following reasons were given by the Commissioner in dropping the demand: “It may not be legally permissible to sustain the demand of differential duty in respect of consignments given in Chart ‘D’ by adopting the bases adopted for enhancing the assessable value in respect of consignments given in Chart ‘A’ and ‘B.’ Such a course of action would amount to giving credence to assumptions and presumptions and acting merely on the basis of suspicion which certainly cannot be a substitute for proof. The Investigating agency had more than ample time (they had even sought extention of time for issue of show cause notice) for collecting details of the contemporaneous imports of similar and/or identical goods from the same or major ports or having the matter investigated into with the help of the investigating agency in the exporting country (as had been done in the case of Wings Electronics belonging to the same set of persons). No sustainable evidence has been produced by the investigating agency and no worthwhile comments to rebut the stand taken by Notice Nos. 1, 2 and 3 in their written replies have been made by the investigating agency when such written replies were sent to them. Under the circumstances, I am constrained to hold that the demand of duty in respect of Chart ‘D’ is not sustainable on facts and in law.” 5. CESTAT dealt with the aforesaid order of the Commissioner and the arguments of the Revenue against the aforesaid approach of the Commissioner. The Revenue had argued that comparable price could be taken from Charts A and B inasmuch as majority of the goods listed in Chart D were identical to the goods prescribed in Charts A and B. The CESTAT in these circumstances observed that if that is correct, then the Commissioner will have to re-examine the issue and decide the same afresh in the light of the observation made by it in para-13 and the order reads as under: “The Commissioner has dropped the demand of duty of Rs. 1,37,46,082/- as proposed in Chart ‘D’ on the ground that no specific quotations in respect of the goods covered by various consignments listed in Chart ‘D’ have been disclosed by the investigating agency. There is also no evidence like, statement of accounts in which consignment wise details proving under valuation and repatriation of the differential value through illegal channels stood recorded. As such, he has held that the demand in Chart ‘D’ cannot be confirmed by adopting the basis as disclosed in Chart ‘A’ and ‘B’ inasmuch as the same would amount to giving credence to assumptions and presumptions as against the above. Revenue in their memo of appeal has strongly contended that the majority of the goods listed in Chart ‘D’ are identical to goods described in Chart ‘A’ and ‘B.’ As such the Commissioner should have applied the same value for the purposes of identical goods listed in Chart D. However, we find that the details of the goods listed in all the above Charts are not available. If the goods listed in Chart ‘A’ and ‘B’ are identical with the goods of Chart ‘D’ we accept the Ld. DR proposition to pick up and apply the same value in respect of the Chart ‘D’ goods also. Inasmuch as we have already expressed our inability to do on account of absence of detailed description of goods in two charts, we direct the Commissioner to re-examine the issue and to decide the same afresh in the light of the above observation made by us.” 6. Learned counsel for the appellant, however, argued that the products mentioned in Charts A and B could not be the basis for determining the valuation of goods mentioned in Chart D. He relied upon the reasoning of the Commissioner in this behalf and submitted that the order of the Commissioner should not have been opposed by the CESTAT. 7. We do not agree with the aforesaid submission for more than one reason. 7. We do not agree with the aforesaid submission for more than one reason. In the first instance, the CESTAT has categorically taken note of the submission of the Revenue that majority of goods listed in Chart D are identical to goods described in Charts A and B. If that is correct, coupled with the fact that the valuation of goods insofar as Charts A and B is concerned has become final, we do not understand as to how that cannot be the basis for determining the transaction value of those goods listed in Chart D which are identical to the goods described in Charts A and B. 8. Consequently, for this purpose, the matter is remitted back to the Commissioner. Thus, the Commissioner can adopt the valuation of goods mentioned in Charts A and B only if it is proved that those goods are identical to the goods mentioned in Chart D. We make it clear that at the time of undertaking this exercise, complete opportunity shall be given to the assessee to prove otherwise and to contest the stand taken by the Revenue by taking all possible defences that are available to the assessee in law. 9. The appeal is, accordingly, disposed of.