TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 1001
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....IC Engines and parts thereof liable to Central Excise duty. They were clearing these items to their sister units located at Faridabad and Mandideep, for further use in the manufacture of tractors. Appeal No. E/3684/2005 is against original order dated 30/09/2005 passed by the Commissioner of Central Excise, Jaipur. The other two appeals are against appellate orders passed by Commissioner (Appeals), for the subsequent periods. The period of dispute in these appeals is from April 2002 to March 2005. 2. As the appellants were clearing dutiable goods to their sister concern, they were adopting valuation based on the cost of manufacture in terms of Rule 8 of Valuation Rules. The assessments, which were made provisionally, were finalized on prod....
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....ter due examination of data submitted by the appellants by the Competent Jurisdictional Assistant Commissioner. The said order has not been reviewed for appeal. However, the Commissioner proceeded and issued a show cause notice against the finding in the said order and decided the case afresh, holding that there is a suppression of material facts by the appellant. There is no suppression of any fact. The verification of appellant's own records and by applying a different interpretation on the allegation of overheads, the Revenue proceeded against the appellant. Reliance was placed by the Commissioner on the provision of sub- Section (5) of Section 35E of Central Excise Act, 1944. He held that no review is required in the present case. The f....
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....graphs, especially average of best of 5 years of production, has not been followed by the department in calculating normal achievable capacity of production. The appellants also contested the correctness of figures taken under WIP. They have also submitted a table showing break up of WIP into (a) materials and (b) overhead expenses (v) the appellants strongly contested the imposition of penalty under Section 11AC for the assessment year 2002- 2003. The dispute, if any, is relating to calculation of overheads and is one of interpretation of the provision of Valuation Rules and criteria of CAS-4. In such situation, there can be no question of suppression or fraud. 4. The learned AR submitted that the original finalization of provisional as....
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....e issue of show cause notice without resorting to review of the final assessment order. His reliance on the sub-Section (5) of Section 35E is found to be misplaced. The said sub-section, though was introduced in 1988 was never notified for implementation. The said sub-section was repealed in 2004 without actually brought into force. It is clear that the learned Commissioner relied on a non-existing legal provision to justify the proceedings against the appellant, in the absence of a review of the assessment order in terms of Section 35E. We note that the Hon'ble Madras High Court in Eveready Industries India Ltd. vs. CESTAT, Chennai reported in 2016 (337) E.L.T. 189 (Mad.) relying on the decision of Hon'ble Supreme Court in Asian Paints (In....
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....rent that the data is taken out of records maintained by the appellants and it is not the case that the details were manipulated or two different sets of records were maintained to mislead the Revenue. The very same records which were examined by the Chartered Accountant for certifying the cost was examined by the departmental cost audit officers to arrive at different conclusions. There is no allegation that the certificate of Chartered Accountant produced by the appellant, was obtained by suppressing relevant facts from the said Chartered Accountant. In this factual situation, we are not in agreement with the assertion made by the Original Authority in his impugned order, to the effect that there is a material suppression of facts by the ....
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....mining correct classification of floor coverings. The Hon'ble Jharkhand High Court in Jalan Carbons and Chemicals Ltd. vs. Union of India reported in 2011 (270) E.L.T. 43 (Jhar.), held that when the department discovered positive evidence of misrepresentation the notice issued cannot be challenged in writ-petitions. We note that none of these decisions are on the point now considered by us regarding non-compliance of provision of Section 35E by the Reviewing Authority. In the present case, as already noted, no further fresh evidence were discussed. The records of the assessee were examined and interpreted differently by the Revenue as against the certificate of C.A. submitted by the appellant. As already noted by us, we find such proceeding....