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TMI Blog2023 (2) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata (the Tribunal). The appeal was admitted on the following substantial question of law: "Whether the order of the Tribunal setting aside the order of penalty on the respondent was correct in law ?" We have heard Ms. Rajashree V. Kundalia learned counsel assisted by Ms. Manasi Mukherjee, learned Advocate for the appellant/revenue. A connected appeal arising out of the very same impugned order was heard by the Division Bench in CEXA/4/2007 and by judgment dated 9th September, 2022, the appeal was allowed and the substantial question of law was answered in favour of the revenue. The operative portion of the said order reads as follows: "The short question involved in the instant case is whether the benefit of certain notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no role to play in the matter of sale and purchase. The adjudicating authority examined the stand taken by the respondent and the other noticee namely, the noticee no.3 and pointed out that not only the stand taken by the respondent but also the spinning mill is not in tune with the general policy notified by the Yarn Committee in the matter of purchase of yarn from the mills and for distribution amongst handloom weavers. The following factual finding has been recorded by the adjudicating authority : "................. The following facts clearly revealed from the scrutiny of the documents and also depositions made by the various persons. It has been clarified that in the event of fixing the minimum rate of sale by Noticee No. 1 at Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when they are claiming that the Apex Bodies are the real purchasers of the yarn and not merely a commission or selling agent." From the above finding it is seen that the respondent has not controverted by producing any evidence to this alleged conclusion that a modus has been adopted by which the respondent received a commission and ultimately the yarn which was to be distributed to handloom weavers were taken of by the trades and other agencies. Thus, on analysing the evidence the adjudicating authority held that the system was evolved only to ensure that the sale should look like a sale from the spinning mill, the noticee no.1 to the respondent, the noticee no.2 and this was done in order to avail the benefit of exemption whereas the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l hank yarn meant for the use of weavers belonging to handloom sector, has been totally defeated by the manner in which the transactions have taken place. Further, the adjudicating authority pointed out that even the traders who are the real buyers of the said hank yarn manufacturer and marketed by the spinning mill, noticee no.1, did not know and could not give any guarantee that the yarn is going to be used only on handlooms and factually it was established that the yarn is subsequently sold to various authorities in and outside the State on which the respondent had no control. Therefore, the adjudicating authority held that the certificates declaring that the yarn is going to be used only on handlooms as issued by the respondent and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conditions under the notification, the learned tribunal has not examined the aspect pointed out by the adjudicating authority that the certificate issued by the respondent and the other apex body was not based on any verification done by them, but solely based upon the certificate issued by the spinning mill. That apart, evidence has been brought on record to show that in the transaction, the respondent had no role and the transaction took place between the spinning mill and the traders and all that the respondent no.1 did was to lend their name thereby being entitled to a commission of 1.5%. Thus, we find that the order passed by the tribunal is utterly perverse, as it has not dealt with any of the findings which has been rendered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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