TMI Blog2018 (7) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 3A of the Central Excise Act, 1944, for the period of assessment 2003- 04 & 2004-05 - Held that:- The principles enumerated in the provision of S.3A could not therefore be excluded by necessary implication for the period prior to 10.05.2008 as well and therefore, finding of facts arrived at by the Adjudicating Authority and the learned Tribunal which reduced the demand of evaded duty to fall in line with the extent of evasion of duty as indicated in the show cause notice remains a finding of fact and does not give rise to any substantial question of law for consideration by this Court in terms of S.35G of the Act - The said findings of facts on estimated evasion of duty cannot be said to be perverse in any manner, giving rise to any question of law even, much less the substantial question of law which is the essential requirement of invoking S.35G of the Act. Appeal dismissed - decided against appellant. - C.E.A. Nos. 6/2018 & 7-10/2018 - - - Dated:- 14-6-2018 - Dr. VINEET KOTHARI AND Mrs. S. SUJATHA JJ. Ms. Vani H, Adv. for Appellants - Assessees Mr. K.V. Aravind, for Respondent- Revenue JUDGMENT Dr. VINEET KOTHARI J. 1. The Assessee-M/s.Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and fact, the matter may stand on a different footing and different considerations but, when it is a pure question of law for available recourse under Section 3-A, we find that such a contention is available to the party aggrieved by the order of the Tribunal. Further, as observed by us hereinabove, even if Section 3-A is to apply, then also, a further scrutiny may be required to be undertaken as to whether, for the goods in question, the notification was issued or not. It is only after the two aspects of applicability of Section 3-A and the availability of the notification for production of Gutka, the matter can be considered for finalization of excise duty by the Revenue. As, neither there is reference to such contention nor there is discussion by the Tribunal on the aforesaid aspects which are vital aspects for charging of excise duty, we find that it would be just and proper to remand the matter to the Tribunal for appropriate consideration in accordance with law. 14. Apart from the above aspects, the learned counsel appearing for the appellant has raised two contentions that the figure mentioned in the second show cause notice of demand of duty is not backed by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside with a further direction that all Appeal Nos. 69, 70, 559, 825 and 826/08 shall stand restored to the Tribunal for its consideration in accordance with law and in the light of the observations made by this Court in the present Judgment. It is observed that before the Tribunal, both the sides shall be at the liberty to raise all contentions as may be available in law and the Tribunal, after hearing both sides, shall pass a fresh order as early as possible preferably within a period of six months from the receipt of certified copy of the order of this Court. It is clarified that the Tribunal shall examine both the aspects which are referred to by this Court in the Judgment but, the Tribunal is at liberty to take independent view of the matter without being influenced by any observations made by this Court in the present Judgment on the aforesaid two aspects. The appeals are allowed to the aforesaid extent . 3. Upon remand, the learned CESTAT has passed the impugned order dated 30.08.2017 in CEA Nos.69, 70, 554, 825-826/2008 (M/s.Trishul Arecanut Granules Pvt. Ltd., vs. Commissioner of Central Excise, Bangalore) and the learned Tribunal on both the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also given liberty to raise the contentions as could be available in law and the learned Tribunal shall pass the fresh order as early as possible within a period of six months. (ii) The learned counsel urged before us that the liberty was given to raise all contentions and that would entitle to the appellants-assessees to raise other issues also besides the aforesaid two aspects, for which the aforesaid remand was made by the High Court. 8. We are not impressed with the said argument. The said observations made by the earlier Bench, in which, one of us was a party, has to be read contextually and the aforesaid quoted portion of the order would clearly indicate that the remand to the Tribunal was made for a specific purpose and the limited to the aspects to be examined by the learned Tribunal as quoted above, namely, the availability of S.3A of the Act and goods were notified or not and whether the demand could be raised beyond show cause notice or not? 9. The contentions left open for the assessees were required to be raised were with regard to these three aspects only and not all the issues other than the aforesaid three aspects were allowed to be raised again in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts recorded of such supplier of cotton bags namely, M/s. Divya Enterprises represented by its Proprietor - Mr.Nemichand Agarwal. 14. We do not find any merit in the contention raised by the learned counsel for the appellant-assessee that in the absence of S.3A on the Statute Book prior to 10.05.2008, the criteria of production capacity could not have been adopted for the purpose of estimating the evasion of Excise duty by the Adjudicating Authority. Such an estimation of clandestine removal of goods could only be based on an estimated production capacity or clandestine removal of such manufactured goods in the packing materials and both these criteria and yardsticks are usually adopted while making best judgment assessment under Excuse law or Sales Tax laws. The levy of excise duty is based on taxable event of manufacture, therefore estimate of production can be based on capacity to produce, computed with reference to quantum of power consumption, labour employed, raw material consumed etc., and clandestine removal can be estimated and computed with reference to purchase of packing materials. Once the premise of evading Excise duty is determined and adopted by the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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