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TMI Blog2022 (11) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... dings, CESTAT had decided issue in favour of assessee, impugned addition was unjustified. We find that the order passed by the Ld. CIT(A) in deleting the addition holding reopening on the basis of the show cause issued by Excise Department not justified is just and proper so as to warrant interference. In that view of the matter, the Revenue s ground of the appeal is found to be devoid of any merit and thus dismissed. - Decided in favour of assessee. - I. T. A. Nos. 739 & 740 / Ahd / 2017 - - - Dated:- 2-11-2022 - SHRI PRAMOD M. JAGTAP , VICE PRESIDENT And Ms. MADHUMITA ROY , JUDICIAL MEMBER Appellant by : Shri R R Makwana , Sr. DR Respondent by : Shri Aseem L Thakkar , A. R. ORDER PER Ms. MADHUMITA ROY - JM : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od from 01.04.2006 to 31.03.2007. The income concealed by the assessee was worked out on the gross profit percentage to the total turnover for the F.Y. 2006-07, where the assessee has a gross profit ratio of 18.97% of the total turnover. The DGCEI worked out under valuation of goods to the tune of Rs.16,83,72,637/- during the period June 2005 to January 2008. Distributing the undervalued turnover in the three financial years in proportion of turnover during these three years, the value of under valuation of goods on account of misdeclaration of MRP for the F.Y. 2006-07 comes to Rs.4,25,19,856/- and the income escaped assessment was, therefore, comes to Rs.80,66,016/-, which was added on protected basis in the hands of the assessee. Furtherm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and above contents of said show cause notice and further, in excise proceedings, CESTAT had decided issue in favour of assessee, impugned addition was unjustified. 6. We have considered the judgment passed by the Futura Ceramics Pvt. Ltd. vs. State of Gujarat (supra), wherein it has been held as under: From the above, it can be seen that the assessment which was previously concluded was reopened on the premise that during the excise raid, it was revealed that the petitioner had clandestinely removed goods without payment of excise duty. The Sales Tax Department, therefore, formed a belief that the value of goods plus excise duty evaded should form part of the turnover of the assessee for the purpose of tax under the Value Added T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of tax under the VAT Act. It is not even the case of the Department that such show-cause notice proceedings has culminated into any final order against the petitioner. We wonder what would happen to the order of reassessment, if ultimately the Excise Department were to drop the proceedings without levying any duty or penalty from the petitioner. All in all, the Asstt. Commissioner has acted in a mechanical manner and passed final order of assessment merely on the premise that the Excise Department has issued a show-cause notice alleging clandestine removal of the goods. Such order, therefore, cannot be sustained and is accordingly quashed. When the order is ex facie illegal and wholly untenable in law, mere availability of alternative rem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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