TaxTMI 
TaxTMI 
2015 (1) TMI 130
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.... in manufacture and clearance of parts of footwear i.e. TPR & PVC soles and rubber sheets falling under Chapter sub-heading 6401,91 and 4008.11 of the First Schedule of CETA, 1985. The assesses was availing the benefit under Notification No. 8/2003-CE dated 1.3.2003. It later obtained registration. (b) On the basis of intelligence gathered that the assessee was manufacturing dutiable goods and indulging in evasion of Duty by misusing benefits under Notification No.8/2003-CE, certain preliminary processes and communication ensued. Thereafter, show cause notice was issued on 7.4.2006 by the Additional Commissioner, Kanpur proposing levy of Excise Duty of Rs. 29,25,212/- apart from interest and penalty, for failure to remit Duty during the period covering financial years 2003-04 and 2004-05 (upto 8.12.2004). After a due process, the adjudication order dated 31.7.2006 was passed by the Commissioner, Central Excise, Kanpur who confirmed the proposals indicated in the show cause notice; demanded duty of Rs. 29,25,212/-; imposed penalty of an equivalent amount and levied interest under Section 11AB apart from interest and penalty of Rs. 1 lakh on the partner of the uni....
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....pted final product, total of which exceed Rs. 3 crores thus making the assessee not entitled to the benefit of exemption notification in the subsequent financial year; that despite appellants having disclosed the full and relevant information in the said declaration, Revenue had issued the show cause notice dated 5.4.2006, beyond the limitation period. On this analysis, the Tribunal concluded that there was no suppression or misstatement on the part of the assessee legitimizing invocation of the extended period of limitation and that initiation of proceedings was therefore barred by limitation. Consequently, the impugned (adjudication) order dated 31.7.2006 passed by the Commissioner, Central Excise, Kanpur was quashed. ( d) These appeals were filed on 13.11.2006. In para 4 of the statement of facts appended to the appeal, the assessee specifically pleaded the fact of having filed declarations on 14.4.2003 and 12.4.2004 for financial years 2003-04 and 2004-05 and enclosed copies of such declarations, as Annexure 6 & 7 to its appeal. The assessee has also challenged invocation of the extended period of limitation, particularly in ground No.12 of the grounds of ap....
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....writing over the previously existing writing. The defence taken by the department was neither raised before the Adjudicating Officer nor before the appellate authority and was thus not considered. Both the Adjudicating Authority and the Tribunal proceeded on the basis that the declarations were filed and from which show cause notice is beyond the period of limitation. It appears that the department has caused enquiries subsequently on the receipt of the declaration and has discovered that the entries in the receipt register were tampered and fraudulently inserted. This Court under Section 35G cannot entertain an appeal on question which was not raised and has no factual foundation. The appeal is dismissed with liberty to the Central Excise Department to file review petition before the Tribunal to be decided on its merits. 4. Pursuant to the liberty granted by the High Court, Revenue filed Miscellaneous Application No.61193/2013(on 13.11.2013) and Miscellaneous Application No.54356/2014 (on 21.7,2014), both s....
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....and the order of the Tribunal allowing the assessee's appeal on the bar of limitation is seen to have been obtained by the assessee on the basis of manipulated records and requires to be recalled, in the interest of justice.(emphasis) 7. The fact that there were interpolations/overwritings in the receipt registers of 2003-04 would not per se lead to an inference that the interpolations were by or at the instance of the assessee. There must be substantive evidence which establishes a nexus between the interpolations and the assessee's participation with identified departmental officers, in the act of interpolations/doctoring of receipt registers. No such evidence whether by way of any statements of departmental officers having control over the entry registers during the relevant period, inculpatory statements of the assessee on this aspect nor any other evidence is adverted to in this application nor is there any other material brought on record to support the assertion as to the assessee's role in tampering of the entry registers. Miscellaneous Application No.54356 of 2014: 8. In Misc. Application No.54356/2014 (filed on 21.7.2014), Revenue annexed another summary of....
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....f declarations filed as annexures 6 & 7, failed to contest the assertions recorded in the adjudication order or those pleaded in the appeal. Revenue also failed to contest the pleaded factual basis for the assessee's plea as to unsustainability of invocation of the extended period of limitation; (iv) Revenue pleads that the declarations dated 14.4.2003 and 12.4.2004, asserted to have been filed by the assessee are currently not available in Revenue records, a plea never raised for 7 years. The assessee has not only pleaded but has also placed before us for perusal copies of the 2 declarations containing initialled and stamped receipt endorsements. Neither during the process of adjudication nor for over seven years during pendency of the appeal in this Tribunal, Revenue had taken any steps to either rebut the claim of the assessee or verify whether office copies of the declarations are available. (v) It is only on 26.8.2013, more than six months after the final order of the Tribunal, the Deputy Commissioner, Central Excise , Lucknow forwarded a receipt registers including of 2003-04 to the private Forensic Consultant (M/s G.P. Saxena and S....
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.... Section 17 of the Limitation Act is that fraud nullifies everything; that if the Tribunal were satisfied, as it ought to have been, upon these facts, that there might be some fraud, there was every reason for it to condone the delay and hear the appeal; and that the judgment in Ajit Singh Thakur vs. State of Gujarat - (1981) SCC 495 (on the basis of which the Tribunal declined to condone the delay), had no application to the peculiar facts of the case. 14. In our considered view, the judgment in Candid Enterprises affords no guidance for application to the facts of this case. The power to condone a delay in presentation of an appeal [vide Section 35B(5)], is not circumscribed by legislatively mandated restrictions as in the case of a rectification application filed under Section 35C(2). The discretion to condone a delay in filing an appeal is to be exercised when reasonable cause is shown. 15. Revenue does not plead nor establish before us that order dated 15.2,2013 is vitiated on account of any fraudulent document which was the basis for the conclusion as to illegality of invoking the extended period of limitation. Revenue's contention is that the declarations dated 14.4.20....