9911796707
TMI Blog2005 (11) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... Director and imposed a penalty of Rs. 50,000/- on M/s. R.R. Traders under Rule 209A for aiding and abetting the company above named. Hence these appeals by the affected persons. 2. The Revenue is also aggrieved by the order of the Commissioner Revenue, therefore is also in appeal. 3. All the appeals are taken up for disposal. 4. Appeal No. E/2559/99 is by the Revenue and is first taken up. 5. The ld. Advocate appearing for the respondent has a preliminary objection. He avers that the impugned order passed by Commissioner of Central Excise Mumbai, was examined by Central Board of Excise Customs under the powers vested with it under Section 35E(1) of the Central Excise Act, 1944 in order to satisfy itself as to the legality and prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (144) E.L.T. 632]. The Tribunal held that direction to file appeal by Board has to be issued to the Commissioner who passed the order as adjudicating authority and not to the Commissioner who has jurisdiction over an assessee s factory. The Tribunal rejected the contention of the appellant in the case before them that the Board should direct the Commissioner who has jurisdiction over the factory in preference to the officer who adjudicated the case to file an appeal. The ld. Advocate argued that in the present case has the Board rightly directed the adjudicating officer (Commissioner Mumbai) to file an appeal; that he alone could have filed it; that the appeal filed by Commissioner Surat is without authorization and therefore deserves to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating authority to file an appeal as per Section 35E(1) of the Act as it stood in 1999. It is only in 2001 Section 35E(1) was amended whereby the Board could have directed any other Commissioner to file an appeal. The ld. SDR s plea that the error can be rectified even now is not tenable as at that point of time (1999) the Board is not empowered to authorize any Commissioner other than the one who adjudicated to file an appeal The suggestion that as to who should file an appeal is only procedural is also unacceptable. What is laid down in Section 35E(1) at the relevant time is not procedural. It is substantive in nature. We are unable to agree with the ld. SDR that at this stage the defect can be rectified. The Board has rightly direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was issued alleging that the appellant company evaded Rs. 46,42,013/- towards duty. The various annexure (I to VI) to the show cause notice give the details of duty evaded. 12. Investigation revealed (there is no serious challenge to these revelations) that the appellant company was removing goods without payment of duty on the strength of internal gate passes (IGPs). Some of the IGPs could be connected with the Lorry Receipts (LRs) issued in respect of the consignments removed by the appellant under them. The LRs indicated the price of the goods and the addresses of the consignees. The Commissioner had taken the price indicated on the LRs as cum duty price and calculated the assessable value by giving suitable deductions. In some cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders so. The ld. SDR however argued that in the case of clandestine removals a reasonable method consistent with declared law has to be adopted as was done by the Commissioner. He strongly supported the method adopted by the Commissioner. 14. We have examined the rival contention. On the face of it, it appears that the Commissioner adopted two different methods for arriving at the assessable value of the same goods. There is considerable force in the appellants pleadings in this regard. The Commissioner is required to give reasons as to why he considers the price arrived at on the basis of the formula is not a cum duty price. The appellant also claims that the Director and the Manager of the Company were asked to give an inflated price i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to taxing the same goods all over again. It is also argued that the Commissioner did not dealt with the averments made before him and in the reply to the Show Cause Notice. Para 103 of the Order-in-Original disposed off appellants contentions perfunctionily. 17. We perused the order. The Commissioner does not appear to be dealing with the averments made before him. His observations that there is no satisfactory explanation is abrupt. He is required to examine the contention in detail and give findings as to why the explanation is not satisfactory. We remand this issue of shortage of finished goods and inputs to the Commissioner to examine the contentions of the appellant afresh. 18. In regard to penalty imposed under Section 11AC it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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