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TMI Blog2019 (6) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... iples of the natural justice by the lower authorities has not resulted an injury to the appellant - The settled legal position is that every lack of opportunity cannot be construed as to be a violation of principle of natural justice - though the assessee took a stand that its former employee should be made available for cross-examination,he contested the matter before the Assessing Officer by placing facts to substantiate their case that they are engaged in the process of manufacturing and excise duty has been paid. Thus, in the absence of any proof produced to show that the statement obtained from the employee has caused prejudice to the assessee, the Tribunal has to only justify the decision taken by the Assessing Officer and CIT(A). This appeal filed by the Revenue is dismissed as being covered by the earlier decision and the substantial question of law is answered against the Revenue. - Tax Case Appeal No.287 of 2019 - - - Dated:- 3-6-2019 - Mr.Justice T.S. Sivagnanam And Mrs.Justice V. Bhavani Subbaroyan For the Appellant : Mrs.K.G.Usharani For the Respondent : Mr.K.Ravi JUDGMENT T.S.SIVAGNANAM, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has been framed for consideration. In other words, unless there is a manufacturing unit, the question of payment of excise duty does not arise. For the subsequent years, the assessees claim has been accepted and the Revenues appeals have been dismissed. Therefore, the petitioners earlier assessment order cannot be sustained. We support this finding with some more additional reasons. In the assessment year, the Assessing Officer has culled out the admitted facts. On perusal of the order, it is seen that the Assessing Officer has accepted that the petitioner has obtained the Central Excise Registration Certificate dated 23.02.2004 for manufacturing of excisable goods. Further, it is admitted that a copy of the return dated 07.12.2005 for excisable goods and availment of CENVAT credit for the month of November 2005, to the Superintendent of Central Excise, Range IIB was produced. Further the Assessing Officer states that the return shows that it classified the goods under CETSH No.3004.90.11, on which excise duty was paid along with necessary description of receipts and consumption of principle inputs and finished products were cleared and waste and scrap arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, would in fact substantiate the stand taken by the assessee with regard to the manufacturing process adopted by them. Therefore, for such reasons also, we hold that no prejudice was caused to the assessee on account of not making available his former employee for cross-examination. 19. We agree that the submissions of the learned counsel for the assessee that the end product is not the same product which was fed into the machines at the first instance as it paced in a gelatine capsule, which is consumed by the user. In Commissioner of Income-tax Vs. N.C.Budharaja Co., reported in [(1993) 70 Taxman 312 SC], it was held that the word production has wider connotation than the word manufacture, while every manufacture can be characterised as production, every production need not amount to manufacture. It was pointed out that the word production or produce when used in juxtaposition with the word manufacture takes in bringing into existence new good by a process which may or may not amount to manufacture. It also takes in all the byproducts, intermediate products and residual products, which emerge in the course of manufacture of goods. In the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply to the Indian company all materials such as know how of materials, such as process sheets, calculation sheets, standards and other information as is necessary to understand the utilisation of the said know how and to implement the same in the manufacture of the said product. 23. The factual matrix clearly demonstrates that what has been done by the assessee is manufacture. The decision relied on by the Revenue in the case of Sacs Eagles Chicory Vs. Commissioner of Income Tax reported in [(2003) 255 ITR 178 SC] is distinguishable on facts as the activity which was the subject matter of the said case was making powder from chicory roots and the appeal by the assessee was dismissed as the assessee failed to satisfy the test laid down in Aspinwall Co. Ltd., case. The learned counsel for the Revenue relied upon the decision of the Division Bench of this Court in Commissioner of Income-tax Vs. Madurai Pandian Engg. Corpn. Ltd., reported in [(1999) 239 ITR 375 (Madras)]. The question was whether the business of tyre retreading done by the assessee amounts to production of a new article and whether the assessee was entitled to relief under Sections 80J and 80HH of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer, which clearly shows the assessee has availed the CENVAT credit and paid the excise duty. That apart, the assessee won the case for the subsequent year 2009-2010 in T.C.A.No.730 of 2015, which was filed by the Revenue against the assessee. Thus, the substantial question of law No.2 is answered in favour of the assessee and against the Revenue. 27. This leaves us with only one question whether the Appellate Tribunal was right in holding that violation of principles of the natural justice by the lower authorities has not resulted an injury to the appellant. The settled legal position is that every lack of opportunity cannot be construed as to be a violation of principle of natural justice. The aggrieved person has to establish before the court or the forum that on account of not providing an opportunity to him, he was put to prejudice. In fact, though the assessee took a stand that its former employee should be made available for cross-examination,he contested the matter before the Assessing Officer by placing facts to substantiate their case that they are engaged in the process of manufacturing and excise duty has been paid. 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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