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TMI Blog1984 (3) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... ation as in Column No. 2 of the reference application, the appeal no. has been mentioned as Appeal No. EL(T)CAL-44/82 which was passed by the Tribunal vide order dated 5th May, 1983 and was also served on the applicant much earlier and as such the appeal is hit by limitation. 2. Shri P.R. Biswas has appeared on behalf of the application has pleaded that this reference application is against the miscellaneous petition arising out of order in Appeal No. EL(T) CAL-44/82 and the miscellaneous petition was registered in the Registry vide miscellaneous petition 4/83 order dated 7th September, 1983 and this order was served on the applicant on the 21st day of September, 1983 and as such this reference application is within limitation. 3. Shri A.K. Saha, the learned S.D.R. has also opposed that no reference application lies from an order passed by the Tribunal which is a miscellaneous petition. 4. After hearing both the sides, we feel that the contention on the learned S.D.R. is not correct, that no reference application lies from an order by this court which is being treated as miscellaneous petition. Reference application is filed under Section 35-G of the Central Excises and Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the Collector of Central Excise and the other party to the appeal. (4) Save as provided in Sec. 35G or Sec. 35L, orders passed by the Appellate Tribunal on appeal shall be final. The provisions as to the statement of case under the Central Excises and Salt Act, 1944 are exactly similar to the provisions under Sec. 256(1) of the Income-tax Act, 1961 and 254 of the Income-tax Act, 1961. The relevant portions of the said sections under the Income-tax Act, 1961 are reproduced as under :- 256(1). The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under Section 254, by application in the prescribed form, accompanied where the application is made by the assessee by a fee of one hundred and twent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court : Provided that, if, in the exercise of its powers under sub-section (2), the Appellate Tribunal refuses to state a case which it has been required by the assessee to state, the assessee may, within thirty days from the date on which he receives notice of the refusal to state the case, withdraw his application and, if he does so, the fee paid shall be refunded. Section 33(4). The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner. 33(5). Whereas the result of an appeal any change is made in the assessment of a firm or association of persons or a new assessment of a firm or association of persons is ordered to be made, the Appellate Tribunal may authorise the Income-tax Officer to amend accordingly any assessment made on any partner of the firm or any member of the association. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to show cause why the Central Excise duty amounting to ₹ 26,076.90 should not be demanded on the said goods under Rule 9 (2) read with Rule 9A(5) of the Central Excises Rules 1944, and why penalty should not be imposed on the applicant under Rule 173-Q. In reply to the said show cause notice, the applicant company had denied each and every allegation made in the aforesaid show cause notice vide their letter dated 17th June, 1982 and had stated that the difference in the figures between balance sheet and R.G. account for the year 1977 in respect of 2 nos. winches manufactured and sold by them had already been adjudicated by the department vide order-in-original No. CPO/Collr/18/82, dated 13-5-1982. With regard to R.G. 1 for the year 1979 in respect of Grab and Derricks, it was stated that the Plugging Box is also a type of Grab and Plugging Box was taken into account under the balance sheet and this was accounted in the R.G.1 under the head miscellaneous. It is also stated that the applicant company removed 4 Nos. of Derricks during the year 1979 which was purchased by them from applicant s sister concern M/s. Construction Machinery Corpn. and these were wrongly shown in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Applicant s Balance Sheet for the year 1979 even though the said Balance Sheet was not prepared correctly as it did not record sales of the 4 crawler cranes and 1 plugging box made by the applicant in the year 1979 which is apparent from records of the case, namely the said Balance Sheet and Sales invoices. 3. Whether in the facts and circumstances of the case Rule 9A(5) of the Central Excise Rules was correctly applied. 6. Shri P.R. Biswas, the learned consultant has appeared on behalf of the applicant and has relied on the statement of facts stated in his reference application and has stated that the balance sheet in fact represents the value of the transferred goods and these were not manufactured by the applicant company. He has referred to a judgment of the Hon ble Supreme Court in the case of Commissioner of Income-tax, West Bengal, Appellants v. Anwar Ali reported in AIR 1970, 1782 wherein the Hon ble Court had held that the proceedings under section of the Income-tax Act are of a penal nature and the burden is on the department to prove that the receipt of the amount in dispute constitutes the income of assessee. The mere fact that the explanation given by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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