COMMISSIONER OF CENTRAL EXCISE JAIPUR-1 V. M/S EMGEE CABLES AND COMM LTD

EXCIA/52/2015

AI Insights

The case involves the Commissioner of Central Excise Jaipur-1 as the appellant and M/S Emgee Cables And Comm Ltd. as the respondent. The core issue revolves around the Tribunal's decision to allow the appeal of M/S Emgee Cables, which was challenged by the Commissioner. The Tribunal had initially quashed the demands against M/S Emgee Cables for under-valuation and clandestine removal of goods, citing insufficient evidence to prove that the goods were manufactured by M/S Emgee Cables and not merely traded. The High Court found that the Tribunal did not adequately address the detailed findings of the Commissioner and lacked a thorough examination of the facts, leading to the decision to remand the case back to the Tribunal for a comprehensive review.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 726226 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 20-12-2017
• Assessment Year: misc
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: R K SALECHA
• Assessee Lawyers: SANDEEP PATHAK
• Keywords: Central Excise; Clandestine Removal; Manufacture; Trade goods; Under-valuation

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Central/Excise Appeal No. 52 / 2015 Commissioner Of Central Excise Jaipur-1, New Central Revenue Building, Statue Circle, C-Scheme, Jaipur ----Appellant Versus M/S Emgee Cables And Comm Ltd. F-75-76, Industrial Area, Jaitpura, Jaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. Sandeep Pathak For Respondent(s) : Mr. R.K. Salecha _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 20/12/2017 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal filed by the assessee. 2. This Court while admitting the matter framed the following substantial question of law:- “i) Whether as per the case the learned Tribunal is correct in law in allowing the appeal of M/s Emgee Cables & Communications Ltd., Jaitpura, Jaipur by drawing a presumption that duty demanded by the Revenue cannot be demanded as the Revenue has not proved that the impugned goods removed clandestinely through a Benami firm by M/s Emgee Cables & Communications Ltd., Jaitpura were manufactured/produced by the said M/s Emgee Cables & Communications Ltd. and the same were not the traded goods in spite of the fact that the transactions made through the said ‘Benami’ firm were owned/claimed by the Director of M/s Emgee (2 of 3) [EXCIA-52/2015] Cables & Communications Ltd. and further none of the persons/appellants, i.e. Shri Sri Pal Choudhary, the Director of M/s Emgee Cables & Communications Ltd., has claimed that the goods sold through the said ‘Benami’ firm were the traded goods?” 3. Counsel for the appellant contended that though complete paper book which is produced now on record, the Tribunal summarily in a cryptic manner has allowed the appeal. 4. We have gone through the order of CIT(A) as well as the Tribunal. The Tribunal in para 6 & 7 has observed as under:- “6. On perusal of the records, we find that in whole of the adjudication, it is not coming out from the cords recovered from the possession of Shri Dilip Shah, whether those goods cleared in the name of M/s Emgee Cables and Communication have been manufactured by M/s Emgee Cables or not. Admittedly, the excise duty is payable or recoverable from the manufacturer/producer of the goods. From the documents recovered from the custody of Shri Dilip Shah, it is not proved that who is the manufacturer/producer of goods. The only presumption can be made out that the goods are treated goods. Therefore, we find that show cause notice has been issued only on the basis of Income Tax Department, and without any investigation done by the Central Excise Department. 7. In view of these observations, the demands against M/s Emgee Cables and Communication on the charge of under valuation of the goods and clandestine removal of goods are quashed. Consequently, the impugned order is set aside. Appeals are allowed with consequential relief to the respondents. 5. However, Commissioner while considering the matter as well as the evidence in detail has observed in para 27 to 37 but we are not reproducing the same for the sake of brevity. The Tribunal in our considered opinion has not given finding in detail. (3 of 3) [EXCIA-52/2015] 6. In that view of the matter, in our considered opinion, the matter is required to be remitted back to the Tribunal for re- consideration. We make it clear that we are not expressing any opinion on merits inasmuch as the Tribunal being last fact finding authority ought to have considered the facts in detail and discussed the order passed by Commissioner Appeals and give its independent finding after considering the documents which are on record. The order of the Tribunal is quashed and set aside. 7. Therefore, the Tribunal now will consider the matter afresh. It will open for the Tribunal to take independent view in accordance with law. 8. The appeal stands allowed. (VIJAY KUMAR VYAS), J. (K.S. JHAVERI), J. A.Sharma/36 "