TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 244
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....ached the Tribunal being aggrieved and dissatisfied with the Order-in-Original dated 30th June, 1997 passed by the Commissioner of Central Excise, Mumbai-III. 3. Mr. Rao, appearing on behalf of the Revenue would submit that the substantial question of law which has been framed by this Court at the time of admission of this appeal ought to be answered in favour of the revenue and against the assessee. For that purpose he submits that the show cause notice levelled specific allegations. If that show cause notice is read in its entirety and together with the statement of facts as emerging from Annexure "A" thereof, then, the Tribunal should have been aware that the foundation on which the said notice was issued fell clearly within the re....
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....od could not have been invoked. This finding of the Tribunal is vitiated according to Shri Rao and by error apparent on the face of the record. 5. On the other hand, Mr. Shroff, learned Senior Counsel appearing on behalf of the assessee supports these findings and particularly recorded at pages 107 and 108 of the paper book. He submits that there is no substantial question of law. Inasmuch as these findings are in consonance with the factual materials placed before the authority by the Revenue itself. If on the material which the Revenue relies upon a suppression could not be established and proved, then, the extended period of limitation was unavailable. This finding of fact by the Tribunal cannot be termed as perverse. The finding w....
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....mbivli, District Thane and cleared to Kandivli as if they had been received by a distinct job worker based at Dombivli. The investigations carried out and the statements recorded revealed that the said Amarnani had cleared their own cloth from Dombivli and passed it off as if received at the Unit at Dombivli by the said Amarnani in their capacity as conductors. Meaning thereby this was not a job work carried out by Amarnani for any distinct third party at Dombivli, District Thane. The investigations have been referred in great details in the annexure to the show cause notice. We have carefully perused these allegations, the basis and the foundation of the show cause notice. 8. While the order-in-original was delivered the Adjudicating....
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.... suppression much less mis-declaration, more so, because case records were also audited by the Department and even the Audit Department did not raise any objection. The show cause notice issued to the assessee alleging shrinkages has also been referred to and the voluntary payments in respect of certain charges and allegations under a distinct show cause notice. The defence was that had there been any suppression the Department would not have obtained all the details and for issuance of any show cause notices relating to shrinkages. The activities were never termed as clandestine or not to the knowledge of the Department or revenue. 10. Yet, the Adjudicating Authority relying upon the allegations in the show cause notice concluded tha....
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....the show cause notice with the aforesaid allegations. It was, therefore, incumbent upon it to hold that the charges and allegations in the show cause notice of mis-declaration and suppression are established and proved by the Revenue. Rather than doing that the adjudicating authority decided as to how the duty can be assessed and in what manner the features in the assessee's case would enable it to distinguish the judgment of the Hon'ble Supreme Court. That exercise was thus impermissible. If this is, how the adjudicating authority proceeded then the Tribunal was obliged to step in. It stepped all by referring to the records. In paragraph 2 of its order the point falling for determination in the appeal has been formulated. The precise point....
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....notice limited to two issues, namely, value of shrinkages not included in the assessable value and the non-addition of 2 to 10% of notional amount in the assessable value. If this was the course adopted by the Revenue while scrutinizing and verifying the records and for purpose of assessment, then, the Tribunal rightly concluded that nothing prevented the Revenue from questioning the stand of the assessee. If the Ujagar formula was inapplicable or was misapplied to the given facts and circumstances, then, the revenue could have proceeded and in accordance with law. If it has omitted to do it, then, it cannot turn around and allege suppression or mis declaration on the part of the assessee. This is a finding of fact emerging from the materia....