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TMI Blog2018 (9) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... taken place on the assessee. We have perused the entire order of assessment. There is no independent material brought on record by the Assessing Officer other than those which were already collected by the Excise department and which, as noted earlier, are yet to be verified. - decided against revenue - R/TAX APPEAL NO. 1123 of 2018 With R/TAX APPEAL NO. 1124 of 2018 With R/TAX APPEAL NO. 1125 of 2018 With R/TAX APPEAL NO. 1126 of 2018 With R/TAX APPEAL NO. 1127 of 2018 With R/TAX APPEAL NO. 1128 of 2018 And R/TAX APPEAL NO. 1129 of 2018 - - - Dated:- 11-9-2018 - MR AKIL KURESHI AND MR B.N. KARIA, JJ. R/TAX APPEAL NO. 1130 of 2018 For The Petitioner : Mrs Mauna M Bhatt (174) ORAL ORDER ( PER : HONOURA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 registered dealer under the Gujarat Value Added Tax Act and was liable to pay tax on the basis of its turnover. The petitioner's return for the financial year 2006-07 was scrutinized by the Assistant Commissioner of Commercial Tax. The assessee was served with the show-cause notice by the said authority indicating that he has reason to believe that taxable turnover was suppressed. This was on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the same. Whether this was sufficient to enable him to frame assessment is a question, which we will answer a while later. 8. Before proceeding further, we may discard the contention of the counsel for the assessees that since the excise proceedings had not yet been finalized, the Assessing Officer could not have passed the final order of assessment. This contention would have multiple o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 is yet to be tested. 11. In addition to confronting the assessee with the contents of the show-cause notice issued by the Excise department, the Assessing Officer has done little else. He of course called upon the assessee to respond to the allegations contained in the show-cause notice, to the statements and materials accompanying such showcause notice. As noted, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Officer did not have the basis for making additions, the question of percentage of the sales at which stage additions should be made would become redundant. 14. In the result, question is decided against the Revenue. All Tax Appeals are dismissed. 4. In the result, without recording separate reasons, these appeals are also dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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