9911796707
TMI Blog2023 (3) TMI 1556X X X X Extracts X X X X X X X X Extracts X X X X ..... one such appeals CEXA/4/2007 was filed by revenue against the impugned order of the Tribunal. By judgment dated 9th September, 2022 [ 2022 (9) TMI 561 - CALCUTTA HIGH COURT] the appeal filed by the revenue was allowed. Following the said decision other connected appeal filed by the revenue was also allowed. The instant appeal filed by the revenue is allowed and the substantial questions of law are answered in favour of the revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Tribunal. By judgment dated 9th September, 2022 the appeal filed by the revenue was allowed. Following the said decision other connected appeal filed by the revenue (CEXA/3/2007) was also allowed. The operative portion of the said order reads as follows: "The short question involved in the instant case is whether the benefit of certain notifications issued by the Department were misused and the respondent/assessee being a party to the modus. The order of the adjudicating authority dated 29th December, 2003 is a very elaborate order. After considering the facts as well as the evidence which was available before the authority, it is pointed that the spinning mill used to remove the plan reel hank yarn and cones directly to vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bution 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. 50/- per unit and quoting of Rs. 70/- per unit by a trader against such minimum rate. Tantuja / Tantusree would have sent authorization for that traders for Rs. 70/- per unit and accordingly the mill (Noticee No. 1) would have issued Central Excise Invoices in the name of trader at the sale rate of Rs. 70/- per unit and Tantuja would get 1.5% commission for such sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ributed 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 actual sale took place between the spinning mill and the private traders while the respondent and the other apex society merely acted as a commission/selling agent thereby earning commission at the rate of 1.5% as profit. Thus, the adjudicating authority records that this point could not be controverted by the respondent neither at the time of making written submission nor at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other apex society are not based on factual verification but only based upon the certificate issued by the spinning mill concerned. Thus, the adjudicating authority held that the conditions stipulated in the notification for the purpose of exemption are not favourable in the case on hand. Accordingly, the proposal in the show cause notice was affirmed and a penalty of Rs. 10,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the adjudicating authority by appreciating the facts and evidence brought on record. Thus, we have no hesitation to hold that the tribunal committed a serious error in interfering with the order of the adjudicating authority. For the above reasons, the appeal (CEXA/4/2007) is allowed and the substantial question of law is answered in favour of the revenue." In the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
