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TMI Blog2005 (10) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; Whether the finding of the Tribunal is not vitiated by reason of its having ignored the relevant evidence and by reason of its relying upon wholly or partly irrelevant material or arriving at the inference from facts found on conjectures and surmise without any evidence whatsoever? (3) Whether there was any material for the Appellate Tribunal to come to the conclusion that there has been a suppression of production of 5297.343 MTs by the assessee? (4) Whether in the facts and circumstances of the case, the finding of the Appellate Tribunal that there has been the suppression of production of 5297.343 MTs by the assessee is perverse? 3. At this stage we advert to the order of the Tribunal dated CI-4292-4293 dated 11-11-98 in which the Tribunal inter alia held "regarding the demand of duty of Rs. 1,47,00,127/- and penalty of Rs. 1,50,00,000/- the demand is upheld but the penalty is reduced to Rs. 75,00,000/- (Rupees Seventy-five Lakhs only)". The Tribunal while coming to this conclusion discussed the evidence and the findings of the lower authority. In para 12 of its order the Tribunal observed as follows. We quote, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the particulars regarding packing and dispatch did not tally with the entries regarding production made in their Central Excise records RG1, because the packing and dispatch figures mentioned in the plant performance report were not reflected in any column of RG1 register. The Commissioner has also in his order painted out that the figures reported by the Appellants in their reply were misleading as they have included the figures of waste and scrap also in their reported figures, whereas the show-cause notice is with reference to the production of CR coils only. Therefore, we find that so far as this demand is concerned the Commissioner's conclusion is based upon satisfactory evidence and therefore this duty demand has to be upheld. However, the penalty on this count is, in the facts and circumstances of this case, reduced from Rs. 1.50 crores to Rs. 75 lakhs". 4. The Tribunal while coming to the conclusion that the Commissioner's findings are based on satisfactory evidence kept the following factors in mind. (a) The balance sheet for the year 93-94 showed, the figures reflected in the plant performance report whereas the statutory records maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination of correct law. (1) Dhirajlal Giridharilal - (1954) 26 ITR 736 the Supreme Court observed that when a final fact finding authority arrived at a conclusion partly on relevant and partly on irrelevant evidence or basis, its decision partly on conjectures, surmises and suspicion and partly on evidence then an issue of law arises. It is argued that the conclusion in the impugned order is based on the alleged statement of Ramachandran, something which never existed, and therefore the findings are based on irrelevant material. (2) In Omar Salay Mohamed Sait v. Commissioner of Income-tax - (1959) 37 ITR 151 the Supreme Court held that a question of law arises when evidence is improperly reflected by a fact finding authority and the matter can be appealed against to the Supreme Court. In the present case the applicant argued that the Tribunal did not appreciate the evidence properly and therefore a question of law arose. (3) Lalchand Bhagat Ambica Ram v. Commissioner of Income-tax - (1959) 37 ITR 288 the Supreme Court held that when an order is based on conjectures a question of law ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court observed that the High Court was wrong in saying that "proper weight" had not been given to all the evidence and admissions made by the assessee and at best the Tribunal (in that case) could be said to have misappreciated the evidence. The Hon'ble Court went on to say "......unless misappreciation amounted to non appreciation, no question of law would arise. Non-appreciation may give rise to the question of law but not mere misappreciation even if there be any from a certain angle. Change of perspective in viewing a theory does not transform a question of fact into a question of law" (emphasis added). 10. In the case of Balkrishna Chaganlal Soni v. State of West Bengal [1983 (13) E.L.T. 1527 (S.C.)] while deciding the jurisdiction of the Supreme Court under Article 134 or 136 of the Constitution held that under these Articles the Supreme Court exercises jurisdiction in factual issues only when miscarriage of justice arising from gross perversity in appreciation of evidence has fouled the findings concurrently reached. Thus the court laid down when a finding based on a fact can turn into a question of law. 11. In the case of Chhanbildas Tribhuvandas Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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