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TMI Blog2018 (5) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... tt (174) For The Respondent : Rele Served (64) ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These Tax Appeals involve identical questions of law arising out of similar factual parameters. Tax Appeal No. 78 of 2016 is treated as a lead mater. The respondent-assessee- M/s. Jaysun Ceramics is a partnership firm and is engaged in manufacture of ceramic tiles and other similar products. For the assessment year 2008-09, the assessee had filed the return of income showing total income of Rs. 1.09 crores (rounded off). Large number of ceramic units in the region were subjected to central excise raid which resulted into issuance of show-cause notices by the Adjudicating authorities under the Central Excise Act. These show-cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the materials collected therein. The assessee's response in brief was that the contents of the show-cause notice issued by the Excise department were not true and correct. It merely contains statements collected behind the back of the assessee. Such statements are not yet verified. The makers of the statements have not been offered for cross-examination. It was also pointed out that the show0cause notice is yet to be adjudicated by the Excise Authorities. It was contended that even if the goods are ultimately sold at a price higher than the printed RSP, there cannot be any presumption that the assessee received the marginal price value. 3. The Assessing Officer was not convinced by such explanations. In the order of assessment, he r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls: "Whether in the facts and circumstances of case, the Income Tax Appellate Tribunal was right in law in rejecting the Revenue's appeals and allowing the appeals of the assessee's and thereby totally deleting the additions made by the Assessing Officer and partially retained by the CIT(A)?" 6. Having heard learned advocates for the parties at considerable length at the outset, we may straightaway agree with the suggestion of the counsel for the Revenue that the present group of cases do not fall in the same category as the judgement of this Court in case of Futura Ceramics (petitioner) Ltd v. State of Gujarat reported in [2013] 40 taxmann.com 404 (Gujarat). It was the case in which, the petitioner before the High Court was a reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was evasion of excise duty further implying evasion of value added tax. It was noticed that the show-cause notice issued by the Excise department had not yet culminated into final order against the petitioner and a piquant situation would arise if ultimately, such show-cause notice were to be dropped in favour of the petitioner. On this ground, the Court quashed the order of reassessment. 7. In the present case, the Assessing Officer has not proceeded on the basis of show-cause notice taking the proposals contained in such show-cause notice as having achieved finality. He has put the assessees to notice with respect to the contents of such show-cause notice issued by the Excise department and also elicited assessee's response to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent material at his command to believe evasion of tax? We have noticed the broad modus operandi stated to have been adopted by the assessees as per the excise show-cause notices. Admittedly, these show-cause notices are only at such stage without in any of these cases the final orders of adjudication have been passed by the Excise authorities. These show-cause notices thus merely present the material collected by the Excise department suggesting the view of the department that this is a case of large scale excise evasion. Before final order levying excise duty with interest and penalty can be passed, these facts have to be established through by parte proceedings. Till then, it only remains in the realm of the stand of the department which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority came to be set aside. However, for the following reasons we do not wish to place any reliance on this judgement : Firstly, the excise show-cause notices in case of the present assessees are yet to be adjudicated. What would be the material on record during such proceedings is not possible for us to foresee. Secondly, the Tribunal has mainly proceeded on the basis of absence of section 4A of the Central Excise Act at the relevant time which, in the opinion of the Tribunal, alone could have permitted the department to substitute the sale price by the transaction value of the goods. Such is not the case in the present group of cases. We would, therefore, be well advised to clear such controversy. 13. When we find that the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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