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TMI Blog2013 (3) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... of activities, all possible details cannot be substantiated by documents. However, all that had been put forth by the Department against the appellant was found to be sufficient by the Tribunal for upholding the order of Commissioner. In our opinion, there does not appear to be any error on part of the Tribunal in upholding the demand raised by the Department by way of show cause notice nor is there any perversity which would give rise to any substantial question of law for this Court to entertain this Tax Appeal. - Decided against the assessee. - TAX APPEAL No. 9 of 2011 - - - Dated:- 19-1-2012 - MR. AKIL KURESHI AND MS SONIA GOKANI JJ. Appearance: MR BL NARASIMHAN for Appellant(s) : 1,MRAPNAINAWATI for Appellant(s) : 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han one, it essentially questions the findings of the Tribunal while confirming the demand on the goods prior to RG1 stage on the ground that same were not accounted for and consequentially levying of the penalty under Section 11AC of the Central Excise Act, 1944. 3. Heard learned counsel Shri Gajendra Jain for the appellant and with his assistance examined the materials on record. It is strenuously submitted by the learned counsel that there is an error on face of the record in the order impugned where the Tribunal has attempted to examine the issue beyond the show cause notice. It has also given findings which is perverse. Therefore this calls for interference from this Court. 4. It would be relevant to briefly examine the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent petition. 6. At the outset, it is needed to be stated that on each demand raised by way of show cause notice and confirmed by the Tribunal, elaborate discussions is made by the Tribunal while upholding the order of the Commissioner. Secondly, it also needs to be noted that entire issue is based on the factual matrix presented before both the adjudicating authorities where it dealt with submissions of both sides and thereafter, concluded against the appellant assessee. This tax appeal which is preferred before this Court essentially requires substantial question of law to be considered, and as urged by the learned counsel, perversity in the findings of the Tribunal since has given rise to these appeals that should be treated as substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of appellant that production of finished extrusion could not have been possible in absence of any raw material quantity. Tribunal noted that this was never argued before the Commissioner and yet, it took note of the opening balance and closing balance of the raw material and decided the issue on the basis thereof. Tribunal noted as under: ...Unfortunately, this statement was not presented to the Commissioner and therefore we do not have the benefit of the analysis of this statement by him. Nevertheless it has to be noted that the statement does not take into account the opening balance and closing balance of the raw materials and it has to be presumed with the figures given are of actual consumption and on this basis we have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el were indeed used in the extrusion plant. 9. It can be further seen that the Tribunal also looked at wastage and examined the correctness of figures by comparing the same with the statement of Shri Urjit Patel. Tribunal also noted that statements made were neither contradicted nor retracted at any point of time by the appellant. With respect to demand of duty in respect of extrusion, similarly, not only Tribunal has analyzed the facts and figures which were presented to it based on statements, but had also found that statements were prepared by a professional who had control over the whole activity of extrusions. It would be apt to reproduce some of the relevant findings on this issue: It was also contended that department has not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hru Urjit Patel, all the partners and others. It was also noted from the statement of transporter that the payment which was received for transportation by cheque, was refunded after retaining his commission. Tribunal noted the fact that none of the statements have been retracted till date and the seized documents were never questioned at any point of time by the appellant. In short, it can be stated that there is extensive discussion on every argument that had been made by the the appellant. It also took note of the fact that this was an issue of clandestine activity relying on decisions of the Courts. It also was of the opinion that for all these kind of activities, all possible details cannot be substantiated by documents. However, all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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