TMI Blog2023 (6) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn by the Tribunal below should be opted. Such finding of facts and decision can only be interfered in an appeal under section 35G of the Act 1944, when such decision is based on inadmissible evidence or arrived at without evidence or recorded based on misreading of materials on record and documents. In the case in hand, from the show cause notice as well as from the order of the Commissioner dated 29.07.2008, it is clear that the order of exemption granted to the respondent on 10.12.2002 is not disputed - the conclusion of the Appellate Tribunal in discarding the Investigation report on ground that the investigation was done in the year 2005 and not immediately after the exemption was granted, cannot be faulted with. Therefore, the course of action adopted by the appellate authority in placing reliance on the recorded facts in the order dated 10.12.2002 granting exemption cannot be said to be perverse. The allegations levelled in the show cause notice dated 29.10.2007 and confirmed in Commissioners order dated 30.11.2007 are based on the foundation that no purchase of plants and machinery was made as claimed by the assessee and such allegations has been established throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : I. A show cause notice dated 29.10.2007 was issued to the respondent alleging that respondent misused benefit of exemption notification No. 32/99CE dated 08.07.1999 and availed undue benefit of excise duty exemption by way of erroneous refund amounting to Rs. 66,89,962.00 (Rupees sixty six lakhs eighty nine thousand nine hundred and sixty two) during the period from December 2002 to August, 2005. II. The basic allegations levelled in the aforesaid show cause notice dated 29.10.2007 were to the extent that acting on intelligence input, an enquiry was conducted by visiting the industrial unit of the assessee on 18.10.2005 and it was found that an industrial unit by the name and style of M/s Polyplast Products was functioning on the same plot of land where the respondent units were said to be operating till 31.03.2002. The said Polyplast products had surrendered its registration to the Central Excise Authority on 09.04.2002, though the assessee unit had applied for benefit of exemption and was granted such exemption on 10.12.2002. It was also alleged that during the investigation it was found that the invoice/bills in respect of the machines shown to have been purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption by means of false declaration by producing forged documents and suppression of material facts. 6. The findings of the Appellate Tribunal: The Appellate Tribunal set aside the order of the Commissioner on basis of the following considerations: I. The Authority concerned after verification of the application of the appellant unit by order dated 10.12.2002 allowed the exemption benefit to the unit and it is reflected and recorded in the order of exemption dated 10.12.2002 that the factory was visited and it was found that the plants and machineries are in existence and in operation as declared by the assessee. It was verified and confirmed that the commercial production of the unit started on 25.05.2000. II. The investigation leading to withdrawal of such benefits commenced in the year 2005. The Department sought for list of the machineries, which were procured and installed before grant of exemption. The investigation was focused on establishing that the invoices of machineries were forged and fabricated and concluded to be so only on the basis of statements of third parties, without any supporting documents. III. If the department had any doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e treated to be a substantial question of law at all. II. The appreciation of the facts by the tribunal, the examination of the documentary evidences and interpretation of such contents cannot be held to be giving rise to the substantial questions of law as framed, inasmuch as the fact remains that exemption was granted after due verifications by the competent authority and finding of the Commissioner of Excise is based only on the statements of the so called vendors without any supporting documents. Therefore, the findings of the appellate tribunal cannot be said to be perverse. In support of such contention Dr. Saraf places reliance on the judgment of the Hon ble Apex Court in the case of Veerayee Ammal Vs. Seeni Ammal reported in (2002) 1 SCC 134, Sri T.Ashok Pai Vs. Commissioner Of Income Tax reported in (2007) 7 SCC 162, Commissioner of Income Tax Vs. P. Mohanakala reported in (2007) 6 SCC 21. 9. Determination of this Court: I. This court has given anxious consideration to the arguments advanced by the learned counsel for the parties and also perused the materials available on record. II. It is well settled that the power of the High Court under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.10.2007 and confirmed in Commissioners order dated 30.11.2007 are based on the foundation that no purchase of plants and machinery was made as claimed by the assessee and such allegations has been established through the statement of the vendors from whom the machineries were purchased and also from the statement of the alleged transporters. However, these statements were recorded in the year 2005 whereas the exemption order was issued on 10.12.2002 and further such statements are also not supported by any tangible material including documents which would show the transactions done by the vendors during the aforesaid period of supply. The fact also remains that there is no whisper by the authority/department that the findings recorded by the competent authority in order dated 10.12.2002, while granting exemption are incorrect or that no verification was made by the authority before granting such exemption. That being the position, the conclusion of the learned Appellate Tribunal as discussed and summarised herein above, cannot be said to be perverse. VIII. Accordingly, the substantial questions of law formulated are answered against the appellant and in favour of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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