9911796707
TMI Blog2012 (2) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule to the Act such as: "All varieties of textiles, namely, cotton, woollen or artificial silk including rayon or nylon whether manufactured in mills, power looms or in handlooms and hosiery cloth in lengths (produced or manufactured in India) as described from time to time in column 2 of the First Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957." And the total turnover attributable to such purchases was to the extent of Rs. 10.86,65,740 for the period concerned. 2. The assessing officer concluded the assessment as per his assessment vide order dated June 24, 1999 under section 12(2) of the Act and so far as this appeal is concerned, accepted the claim of the assessee rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had even then not produced proof of payment of additional excise duty by the original manufacturer of the fabrics and therefore, while the assessee has not fully made good the conditions required to be made good under the exemption provision of entry 3 of the Fifth Schedule to the Act and in the absence the turnover will have to be necessarily assessed as relatable to entry No. 7A of Part T of the Second Schedule to the Act. 6. The assessee responded to the show-cause notice contending, inter alia, that the show-cause notice was bad not only for the reason that, what was sought to be revised is not an issue covered under an order passed by the Joint Commissioner and being beyond the period of four years it is virtually a revision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 25A of the Act for rectification and the assessee also having tried that, but the Commissioner having dismissed the application as per his order dated September 23, 2009 and now the assessee having become wise has approached this court with the present appeal under section 24(1) of the Act. 10. The appeal having been admitted, the respondents having been put on notice are represented by Smt. S. Sujatha, learned Additional Government Advocate. 11. We have heard Sri B. G. Chidananda Urs, learned counsel for the appellant and Smt. S. Sujatha, learned Additional Government Advocate, appearing for the respondents. 12. Mr. Urs raised two points which are urged before the Additional Commissioner; one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is one covered by entry 3. 12.3 It is also pointed out by Mr. Urs that it is most unreasonable to expect a dealer to produce proof of payment of additional duties after six years and even otherwise it is not contemplated in the scheme of exemption as there is no guarantee that a dealer will always be purchasing exempted goods directly from the manufacturer, but the purchase can be from another dealer, etc. Mr. Urs submits that the Additional Commissioner was wrong in taking the view that as the goods did not conform to the description as indicated in entry 3 of the Fifth Schedule, as no such condition is stipulated against the goods as per the description in column 2 of the Fifth Schedule to the Act and payment or otherwise of additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Act, it should necessarily be as described in the Schedule to the Excise Act and therefore, the order passed by the Additional Commissioner to deny the exemption is perfectly valid, as even now the assessee has not made good the exemption in terms of entry 3 of the Fifth Schedule to the Act, etc. 14. Having heard Sri Urs, learned counsel for the appellant and Smt. S. Sujatha, learned Additional Government Advocate for the State and having perused the records and bestowed our attention to the submissions of the learned counsel and in the wake of the decisions relied upon by Sri Urs, the point that arises for our consideration is: "Whether the order passed by the Additional Commissioner under section 22A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be sustained on a perusal of the provisions of entry 3 of the Fifth Schedule to the Act. 15.2 We say so for the reason that the conditions imposed for claiming exemption in no way contemplate a dealer providing proof of payment of additional duties of exemption by the manufacturer. 15.3 A proof of this nature is obviously not contemplated in the Scheme of this Act. The exemption granted in respect of the items figuring in entry 3 are not qualified by a condition that it should be purchased from a manufacturer. 15.4 If as submitted by Sri Urs, learned counsel for the appellant, if a dealer has purchased such goods which otherwise figured in entry 3 from a subsequent dealer who had in turn purchased it from a manu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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