9911796707
TMI Blog2007 (2) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations made against the Company. Matter was heard. The then Commissioner passed an adverse order relying on the Dip Register for the purpose of suppression and for the suppression of the case on the merits of the matter. An adverse order was passed confirming the show cause notice. Matter was taken to the Tribunal by the assessee. The Tribunal, after hearing has chosen to remand the matter for reconsideration with a further direction to make available the Dip Register to the assessee for the purpose of the say of the assessee in the case on hand. Thereafter, the department did not make available the said Register. But however heard the respondent-Company and once again confirmed the earlier demand. Aggrieved by the same, the assessee we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is clearing the said unaccounted portion without issuing invoice and without payment of duty, the preventive unit visited the said plant/mill on 4-2-1997 and further on 19-2-1997. Records were checked and statements were recorded. Thereafter, the department issued a show cause notice on 16-8-2000 (Annexure 'B'). In the show cause notice, the department made reference to the Dip Register for the purpose of suppression of material facts on the part of the Company. The department also considered the said suppression of facts for the purpose of extended limitation in terms of Section 11-A of the Central Excise Act (for short 'the Act'). After receipt of notice, the respondent submitted a detailed reply denying the allegations made against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal. 3. Per contra, Sri. Kathavi, learned Counsel supports the order. 4. After hearing, we have carefully perused the material placed on record. Show cause notice is available at page 36 of the paper book. In the detailed show cause notice, apart from referring to the various registers, the department also would refer to the Dip Register for the purpose of suppression of facts as we see from the detailed show cause notice issued to the respondent-Company. The Company no doubt has denied the same by contending that there is no suppression and according to the Company, various Statutory registers would show that there is no suppression and no case is made out for further demand of duty in the case on hand. When the matter was heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard I observe that, the assessee is trying to take advantage of the fact that 'Silo Dip Register' seized by the Investigating Officers is not readily available for verification. However, considering the fact that 'Silo Dip Register' is not available for verification, I am constrained to proceed with adjudication of the case on the basis of other available records. I observe that, though the 'Silo Dip Register' is listed in the Annexure to show cause notice as a relied upon document, the wordings of the show cause notice as a relied upon document, the wordings of the show cause notice to go to show that actually it was not considered for arriving at and working out the duty evaded." The Commissioner further notices that "Hence, I find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that the assessee is taking advantage of this missing document in his order. This finding of the Commissioner has been rightly accepted by the Tribunal. The Commissioner is duty bound to comply with the order of the Tribunal that too when that order refers to production of the document for the say of the assessee. The Commissioner cannot pass an adverse order despite non production of the Dip Register contrary to the orders of the Tribunal. Without the said register, it is not possible for the authorities to dis-believe the documents of the assessee. The Tribunal, in these circumstances, has rightly held against the department on the facts and circumstances of this case. The order is based on facts. The order of the Tribunal has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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