TMI Blog2003 (3) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notices dated 22-9-97 and 11-2-2000 were issued subsequently alleging that there was short-levy of duty on account of under-valuation of the goods by the appellants. The order impugned in the present appeal confirmed those duty demands and imposed an amount equal to the duty held as short-paid as penalty. Thus, the impugned order has raised a duty liability of over Rs. 2.0 crores and the same amount as penalty. The ground for confirming the duty demand is that a scrutiny of the balance sheet of the appellants for the years from 1992-93 to 1997-98 showed, that there were outstanding advances in each year to the tune of over Rs. 6.0 crores to Rs. 12 crores in each year. The impugned order has taken the view constituted that since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Balance Debit Balance 1992-93 Rs. 6.32 crores Rs. 72.19 crores 1993-94 Rs. 11.41 crores Rs. 45.57 crores 1994-95 Rs. 12.21 crores Rs. 40.89 crores 1995-96 Rs. 9.68 crores Rs. 66.85 crores 1996-97 Rs. 10.54 crores Rs. 100.46 crores 1997-98 Rs. 9.38 crores Rs. 121.15 crores 3. It is also the submission of the appellants that the decision of the Apex Court in Metal Box Industries Ltd. had no application to the facts of the present case. In Metal Box India Ltd. case it was found that Metal Box took huge advances from Ponds India, their buyer, and the sale price was 50% of the normal price, on account of this. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants which are published from year to year. These are public documents and the department had also access to them. In such a situation it is not tenable for the Revenue to allege that there was suppression of facts, with intent to evade payment of duty, so as to attract the proviso to Section 11A. That proviso relates to cases involving fraud, collusion, suppression of facts, etc., with intent to evade payment of duty. 6. We have perused the records and have heard the learned SDR. Clearly, the impugned order is not tenable. Each one of the objections raised by the appellants against the findings and the way they were reached is required to be sustained. A finding about benefit from advances has been reached without considering a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve enabled the Commissioner to weigh the opinion of the expert and reach a considered conclusion. The expert would also become better in his profession when signed by cross-examination. The avoidance of these vital steps in the adjudication proceedings has led to the passing of a clever-by-half order which cannot survive when tested. Further, the finding of suppression of facts against the assessee is wholly unfair, apart from being incorrect. Balance Sheets of companies is a publicly available document. Therefore, the allegation that data stated in the Balance Sheet was suppressed from Central Excise authorities is not a viable allegation. The demand has to fail on the ground of limitation itself. 7. In the result, the appeal is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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