TMI Blog2015 (1) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion as to illegality of invoking the extended period of limitation. Revenue's contention is that the declarations dated 14.4.2003 and 12.4.2004 (relevant to financial years 2003-04 and 2004-05) were never filed by assessee. This assertion is predicated on the fact that originals of these declarations are not currently available in Revenue records. Inference that the assessee did not file these declarations is based on the singular fact that there are overwritings/ interpolations in the receipt register of 2003-04, as opined by the Forensic Consultant. On the basis of this opinion, Revenue seamlessly proceeds to conclude that the interpolations were the product of a collaborative effort of some unknown officers of the Department, at the behest of or in connivance with the assessee. There is no interconnecting evidentiary material furnished for this ethereal leap to the conclusion. Nothing is placed before us to establish whether any departmental officer was found guilty of interpolations of the receipt register. No inculpatory statement was recorded from the assessee to support any conclusion as to its participation in tampering of Government records; No officer in-charge of purs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess, the adjudication order dated 31.7.2006 was passed by the Commissioner, Central Excise, Kanpur who confirmed the proposals indicated in the show cause notice; demanded duty of ₹ 29,25,212/-; imposed penalty of an equivalent amount and levied interest under Section 11AB apart from interest and penalty of ₹ 1 lakh on the partner of the unit (who has preferred the connected appeal). In para 35 of the adjudication order, the ld. Commissioner adverted to the assessee's contention (in the context of the challenge to invocation of the extended period of limitation) that the assessee did not suppress any relevant facts, as the declaration was filed on 14.4.2003 for the financial year 2002-03 and on 12.4.2004 for the financial year the 2003-04, clearly declaring the value of clearances of PVC/TPR soles and rubber sheets. This paragraph also records- On a perusal of the photocopies of the said declarations, as submitted by their Advocate at the time of personal hearing, I find that the party had misdeclared the fact by declaring rubber sheets as wholly exempted goods. However, the goods, i.e. rubber sheets was chargeable to nil rate of duty by tariff rate. &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact of having filed declarations on 14.4.2003 and 12.4.2004 for financial years 2003-04 and 2004-05 and enclosed copies of such declarations, as Annexure 6 7 to its appeal. The assessee has also challenged invocation of the extended period of limitation, particularly in ground No.12 of the grounds of appeal. It also requires to be noticed that for nearly 7 years (since the date of filing of the appeal), the above pleas of the appellant were within the knowledge and notice of the State/Revenue but Revenue had not chosen to contest the specific fact pleaded i.e. that no declarations as asserted in the memorandum of appeal were filed by the assessee in respect of financial years 2003-04 and 2004-05. Revenue also failed to rebut the assertion recorded in para 35 of the adjudication order, regarding declarations purportedly filed by the assessee in respect of the above periods. (e) Only after the adjudication order was quashed, on the basis of the conclusion recorded as to the illegality of invocation of the extended period of limitation, Revenue appears was galvanized into a litigative strategy and preferred Central Excise Appeal No.245/2013 before the Hon'ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2013(on 13.11.2013) and Miscellaneous Application No.54356/2014 (on 21.7,2014), both seeking review of the final order dated 15.2.2013. 5. It requires to be noticed that its initial application for review (No.61193/2013, filed on 13.11.2013), Revenue pleads (in para 4) that the Tribunal's order dated 15.2.2013 was passed on the strength of documents which on later enquiry were found to be fraudulent, hence in the interest of justice, the said order needs to be recalled. In the statement of facts and grounds of appeal annexed to this application, Revenue pleads that after the final order (of the Tribunal) dated 15.2.2013 it ascertained the correct factual position and copies of the original declaration filed with the department and details of dak receipt register were called for. In response, the office of the Assistant Commissioner of Customs, Agra intimated non-availability of the declarations but forwarded entries in the receipt registers of 2003-04 and 2004-05 showing receipt of the declaration form; and that on scrutiny of entries in the receipt register, these appear to have been tampered with and fraudulently inserted. It is further pleaded that after this report from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Misc. Application No.54356/2014 (filed on 21.7.2014), Revenue annexed another summary of the factual matrix and grounds for seeking recall of the final order. 9. Earlier, on 26.5.2014, we passed an order observing that Misc. Application No.61193 of 2013 does not assert or plead the relevant chronology of events nor asserts what inferences are to be drawn on the basis of the forensic report, regarding the issue whether declarations were at all filed by the assessee and if so on which dates. This order also records that Revenue seeks liberty to file a fresh and comprehensive misc. application, pleading all relevant facts. This request was granted. Thereupon, Misc. Application No.54356/2014 was filed along with a fresh statement of facts and grounds of appeal, setting out a chronology of relevant dates and events leading to the application. The facts adverted to in this application do not reveal any new facts or material to support the allegation regarding the assessee manipulating the records or regarding the declarations not having been filed. 10. What then are the sequence of relevant events, the grounds pleaded and the facts established by Revenue to seek rectification of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant (M/s G.P. Saxena and Son), who furnished an interim report on 29.8.2013 and a final report on 9.9.2013. (vi) On 17.9.2013, the High Court of Allahabad dismissed Revenue's appeal with liberty to file a review application before this Tribunal, with the observation that if filed it would be decided on merits; (vii) The rectification/review application (No.61193 of 2013) was filed on 13.11.2013, beyond six months from the date of the final order (dated 15.2.2013) and an improved version of the application was filed on 21.7.2014, (viii) Section 35 C(2) of the Central Excise Act, 1944 authorises the Tribunal to rectify any mistake or amend any order (final order) passed under sub-section (1), if it is brought to our notice by an aggrieved party that the order suffers from a mistake apparent from the record. 11. It is axiomatic and a principle which is well established that the power of review, of a judicial or quasi-judicial order should be expressly and legislatively conferred. Section 35C(2) of the Act does provide but not an uncanalised and unrestricted power of review/rectification. Grant of the power (of rectification) is subject to a specified limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 12.4.2004 (relevant to financial years 2003-04 and 2004-05) were never filed by assessee. This assertion is predicated on the fact that originals of these declarations are not currently available in Revenue records. Inference that the assessee did not file these declarations is based on the singular fact that there are overwritings/ interpolations in the receipt register of 2003-04, as opined by the Forensic Consultant. On the basis of this opinion, Revenue seamlessly proceeds to conclude that the interpolations were the product of a collaborative effort of some unknown officers of the Department, at the behest of or in connivance with the assessee. There is no interconnecting evidentiary material furnished for this ethereal leap to the conclusion. Nothing is placed before us to establish whether any departmental officer was found guilty of interpolations of the receipt register. No inculpatory statement was recorded from the assessee to support any conclusion as to its participation in tampering of Government records; No officer in-charge of pursuing the case of Revenue during 2006 to 2013 (pendency of the appeal), has been proceeded against for failing to rebut assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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