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2015 (2) TMI 609 - DELHI HIGH COURTComposite issuance of SCN to two parties - Whether on the facts and circumstances of the case, the CESTAT was right in law, in concluding that duty demand against Assessee could not be confirmed since it was not possible to arrive at the value of clearances separately between M/s. Florida Electrical Industries Limited and assessee - Held that:- A look at the CESTAT’s order would reveal that the Tribunal was guided principally by the proportion rule directed by the Commissioner in apportioning liability. The Commissioner had dealt with, at some length the nature of evidence and materials gathered during the investigation which included statements of various individuals recorded. It also included several receipts, copies of ledgers, books etc. As to whether it was completely unfeasible for him to attribute production figures based on such seized materials is something which this Court can only speculate on, but not determine through any finding. Undoubtedly, the show cause notice was issued in a composite manner to both the parties. However, in our opinion, that ipso facto did not vitiate the proceedings. If at the stage of determination of liability or at the final stage, it was open to the Commissioner to ascribe one figure or the other, to each of the parties, that course ought to have been adopted. To that extent, the submission of the assessee/respondent that no rule or principle authorizes the apportionment of liability based upon the past figures is justified. - matter requires to be re-examined on the merits of the clandestine removal. - Matter remanded back to tribunal with direction. Jurisdiction of the commissioner to issue the show cause notice - Held that:- Held that:- Section 38A has the effect of saving investigations, legal proceedings etc. The respondent’s submissions that upon the issuance of Notification in 2002, legality of investigations stood protected but upon the ceasing of such proceedings, the appropriate Commissioner necessarily had to exercise jurisdiction is textual and narrow. This Court has to be alive to the fact that the provision was brought with retrospective effect, keeping in mind the larger public interest to avoid precisely the kind of contentions that were successfully urged in the present instance. In tax proceedings, such as the present one, there is certain seamlessness to the entire process, and splitting up that into different stages, i.e., investigation, adjudication, etc. and the spelling up of the process would defeat the underlying object of Section 38A, and lead to startling as well as anomalous results. - Consequently, the second question of jurisdiction is answered in favour of the Revenue and against the assessee.
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