9911796707
TMI Blog2007 (11) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 85,44,953 and Rs. 66,24,953. An inspection was conducted by the Central excise authorities in the petitioner's place of business on February 25, 1991 and based on the documents and statements of witnesses, the Central excise authorities proposed assessment that the petitioner was manufacturing various quality of plywoods other than the declared one and selling the same as a low quality product and thereby the petitioner has undervalued the goods. The proposals of the Central excise authorities were forwarded to the Income-tax Department and they also proposed a revision of assessment. The petitioner filed an appeal before the Commissioner of Central Excise and also before the Commissioner of Income-tax for the assessment under the Income-tax Act. The appeal filed before the Commissioner of Central Excise was dismissed vide order in Original No. 63/95, dated August 3, 1995 and the petitioner filed further appeal before the Central Excise Gold (Control) Appellate Tribunal (for short, "the CEGAT"), Chennai. In the meantime, the Enforcement Wing inspected the place of business of the petitioner on March 5, 1996 after nearly five years from the end of the assessment year and on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses remain closed. Therefore, when the appeal was taken up for final hearing on December 1, 2003, the petitioner was not aware of the same and, hence, they could not appear to defend the case. In the circumstances, the Appellate Assistant Commissioner V, Commercial Taxes, Kancheepuram, the second respondent herein, dismissed the appeal ex parte on December 4, 2003 by stating, "In the absence of the appellant's turning up before this forum either on their own or contesting through an authorised representative, I do not have any option except to conclude that there is no case for the petitioner". Aggrieved by the same, the petitioner has preferred this wit petition. Mr. A.P. Srinivas, learned counsel appearing for the petitioner, submitted that as per section 31A(3) of the Tamil Nadu General Sales Tax Act, 1959 (for short, "the TNGST Act") read with rule 27(5) of the Tamil Nadu General Sales Tax Rules, 1959 (for short, "the TNGST Rules"), the petitioner is entitled to have a reasonable opportunity of being heard before deciding the appeal. According to the learned counsel, rule 52 of the TNGST Rules, prescribes the manner and the mode of service. Pointing out the defect in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate authority had caused a fresh service to the petitioner and that one, Mr. Veeraraghavan, accountant of the petitioner had sent a telegram on January 3, 2003 praying further time of 15 days. Even thereafter, two more summons were sent to the petitioner and finally, the summon dated November 10, 2003 was returned by the postal authorities with an endorsement that the premises remain closed. Referring to the effort taken by the department, as stated in the impugned order, learned Additional Government Pleader submitted that by taking more than 50 adjournments, the petitioner had successfully dragged on the appeal before the second respondent and, therefore, the contention of the petitioner that they are not given adequate opportunity is not tenable. As regards the contention of the petitioner that the decision of the Income-tax authorities/ Central excise authorities ought to have been considered by the second respondent, counsel for State submitted that in the absence of any materials/submissions placed before the appellate authority, the impugned order cannot be found fault with on merits. As regards service of summons, learned Additional Government Pleader submitted that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such assessment. Sub-section (2) of section 12A contemplates that the provisions of sub-sections (2) to (5) of section 16 shall, as far as may be, apply to assessment or reassessment under sub-section (1) as they apply to the reassessment of escaped turnover under sub-section (1) of section 16. Rule 18C of the TNGST Rules, 1959 contemplates that in making an assessment under section 12A, the assessing authority shall take into account such of the factors as may be relevant to the determination of the prevailing market price of the goods. A perusal of the revised assessment order dated June 1, 1998 amply demonstrates that the assessing officer has failed to hold an enquiry and failed to take into consideration the factors which are set out in rule 18C of the TNGST Rules to arrive at the undervaluation of the goods. The revised assessment order is only a reflection of the proceedings of the Central excise authorities. Though the petitioner has protracted the proceedings for a long period, the appellate authority ought to have considered as to whether the original authority, i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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