TMI Blog2015 (8) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... inapplicable. If this was the course adopted by the Revenue while scrutinizing and verifying the records and for purpose of assessment, then, the Tribunal rightly concluded that nothing prevented the Revenue from questioning the stand of the assessee. If the Ujagar formula was inapplicable or was misapplied to the given facts and circumstances, then, the revenue could have proceeded and in accordance with law. If it has omitted to do it, then, it cannot turn around and allege suppression or mis declaration on the part of the assessee. This is a finding of fact emerging from the materials produced on record. - The adjudication by the Tribunal in the appeal is within the four corners of Section 11A and the ingredients thereof required to be established by the Revenue. This is how it proceeded and held in favour of the assessee, then, the order in that behalf cannot be held to be vitiated and to such an extent as would enable us to answer the substantial question of law in favour of the Revenue. - Decided against Revenue. - Central Excise Appeal No. 11 of 2005 - - - Dated:- 29-1-2015 - S.C. Dharmadhikari and Sunil P. Deshmukh, JJ. Shri A.S. Rao, for the Appellant. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one by the fact that the assessee took a particular stand and which stand was known to the Department/Revenue. A general finding of fact is then rendered by the Tribunal and it held that there is no suppression. Therefore, the extended period could not have been invoked. This finding of the Tribunal is vitiated according to Shri Rao and by error apparent on the face of the record. 5. On the other hand, Mr. Shroff, learned Senior Counsel appearing on behalf of the assessee supports these findings and particularly recorded at pages 107 and 108 of the paper book. He submits that there is no substantial question of law. Inasmuch as these findings are in consonance with the factual materials placed before the authority by the Revenue itself. If on the material which the Revenue relies upon a suppression could not be established and proved, then, the extended period of limitation was unavailable. This finding of fact by the Tribunal cannot be termed as perverse. The finding was possible and in the given facts and circumstances. Therefore, the appeal should be dismissed. 6. We have with the assistance of the Counsel appearing for parties perused the appeal paper book and the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted gave their premises and their job work assignment on contract basis to M/s. Amarnani. The activity of processing of grey fabrics was thus undertaken by the contractor on behalf of M/s. Shiva Suitings. The activity of processing of grey fabrics for third party manufacturer as also the grey fabrics received from Kandivali factory or Unit of M/s. Amarnani were disclosed with the details including price lists in Proforma-I. In the remarks column the name of Amarnani Textiles Industries Pvt. Ltd. was mentioned to show that the grey fabrics belong to the said Amarnani. In the price list they were indicating cost of grey fabrics and added to that the job work charges including profit plus a 10% notional amount to take care of unforeseen costs and expenses like shrinkages etc. Thus, the assessee was following a procedure for determination of the assessable value and according to it which was laid down in the decision of the Hon ble Supreme Court delivered in the case of M/s. Ujagar Prints v. Union of India - 1989 (39) Excise Law Times 493. The assessee claimed that the price lists were duly approved. There is no suppression much less mis-declaration, more so, because case records were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue. Rather than doing that the adjudicating authority decided as to how the duty can be assessed and in what manner the features in the assessee s case would enable it to distinguish the judgment of the Hon ble Supreme Court. That exercise was thus impermissible. If this is, how the adjudicating authority proceeded then the Tribunal was obliged to step in. It stepped all by referring to the records. In paragraph 2 of its order the point falling for determination in the appeal has been formulated. The precise point was whether the demand raised in the show cause cum demand notice is barred by limitation. 11. In that regard the Tribunal found that whenever grey fabrics were received for processing from Kandivli Unit of assessee the price lists were filed. The name of the assessee as owner of manufacturer of grey fabrics was indicated in the remarks column. The grey fabrics received from third party at Dombivli unit for processing were indicated in the price list in that behalf in the similar column. Further, the assessee never suppressed that it adopted a certain method of valuation and the formula emerging from the judgment of the Supreme Court in Ujagar Prints (supra). That m ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
