Elctro Ferro Alloys Pvt.Ltd, Ahmedabad V. The Income tax Officer,Ward-4(1), Ahmedabad

MA 137/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7910 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 25-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Sale consideration of property below Jantri Value; Retraction
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, JM AND SHRI A. MOHA N ALANKAMONY, AM) M. A. NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04) ELECTRO FERRO ALLOYS PVT. LTD., 208, ADITYA BUILDING, MITHAKALI SIX ROADS, ELLISBRIDGE, AHMEDABAD PA NO. AAACE 6380 L VS THE INCOME TAX OFFICER, WARD 4 (1), AHMEDABAD (APPLICANT) (RESPONDENT) APPLICANT BY SHRI S. N. SOPARKAR WITH SHRI JAIMIN GANDHI, AR RESPONDENT BY SHRI P. L. KUREEL, SR. DR DATE OF HEARING: 20-04-2012 DATE OF PRONOUNCEMENT: 20-04-2012 ORDER PER A. MOHAN ALANKAMONY : THIS MISC. APPLICATION IS FILED BY THE ASSESSEE SEEKING RECTIFICATION OF T HE ORDER OF THE TRIBUNAL DATED 25-03-2011 IN ITA NO.4526/AHD/2007 F OR AY 2003-04. 2. THE MISTAKES APPARENT ON RECORD ON THE ORDER OF THE TRIBUNAL ARE ELABORATELY PRESENTED BY THE APPLICANT AND THE SAME READ AS UNDER: THE HONORABLE BENCH IN PARA 15.1 ON PQ.60-61 HAS H IGHLIGHTED FIVE DISPUTED AREAS. 1)THE POINT NO. 5 BEING 'WHETHER THERE IS ANY CASE FOR HOLDING THAT SILVASSA UNIT WAS A RESULT OF SPLITTING OF AHMEDABA D UNIT ' HAS NEVER BEEN TAKEN UP BY A.O., NOR BY CIT (A) DURING REMAND REPO RT PROCEEDING, NOR BY A.O. IN HIS REPLY TO THE REMAND REPORT AND NOT E VEN BY CIT(A) IN HIS MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 2 ORDER. THE COUNSEL FOR THE ASSESSEE HAD POINTED OUT THAT THIS ARGUMENT IS NOT AVAILABLE TO THE ID. DR BECAUSE THIS IS NEITHER THE CASE OF THE A.O. NOR THE CASE OF CIT(A). IT WAS ALSO POINTED OUT EVEN BE FORE THE CIT(A) DURING THE STAGE OF REMAND PROCEEDING NO SUCH CONTENTION W AS RAISED. ALTERNATIVELY IT WAS ARGUED THAT ON MERITS THIS CON TENTION HAS NO BASIS. THE HONORABLE BENCH HAS, WHILE DEALING WITH THIS CONTEN TION, HELD IN FAVOUR OF ASSESSEE BASED ON MERIT. THE FACT THAT THIS ARGUMEN T IS NOT AVAILABLE TO ID DR IN ABSENCE OF SUCH A CONTENTION BY ID AO OR THE CIT(A) HAS NOT BEEN RECORDED. 2) IN PARA 15.3 WHILE DEALING WITH THE CONCEPT OF THE EXISTENCE OF THE LABORATORY AT THE SILVASSA UNIT THE HONORABLE TRIBU NAL HAS GIVEN VARIOUS FINDINGS AGAINST THE ASSESSEE. IT IS THE CASE OF AS SESSEE THAT FINDING GIVEN BY HONORABLE TRIBUNAL, SUFFERS FROM VARIOUS FACTUAL INACCURACIES. HERE ATTACHED TABLE BELOW POINTS OUT IN DETAIL THE ERROR S IN THE ORDER OF THE HONORABLE TRIBUNAL WHICH REQUIRES TO BE CORRECTED. SR. NO. ISSUE/FINDINGS OF HONORABLE TRIBUNAL REPLY 1. THE LEARNED AR SUBMITTED SURVEY WAS CARRIED OUT AT A TIME WHEN SILVASSA UNIT WAS NOT FUNCTIONING AT FULL GEAR PAGE 34 PARA 11.1 A) SILVASSA UNIT WAS CLOSED IN 2005, WHERE AS SURVEY WAS CONDUCTED IN 2006; LONG AFTER THE PLANT HAD BEEN DISMANTLED AND POSSESSION OF THE PREMISE WAS HANDED OVER TO LANDLORD LONG BEFORE THE SURVEY. 2 NO CERTIFICATE OF ANY TESTING OF MOLYBDENUM ORE WHICH IS BASIC RAW MATERIAL REQUIRED FOR MAKING FMA IS PRODUCED BEFORE US. PAGE 62 A) NO TESTING RECORDS FOR MOLY ORE WERE ASKED BY A.O., REMAND REPORT OR CIT(A). B) DURING THE COURSE OF HEARING NO SUCH CERTIFICATE WAS REQUIRED TO BE PRODUCED BY HONORABLE BENCH. C) WHEN MOLYBDENUM ORE CONCENTRATE ARRIVED AT SILVASSA SAMPLES WERE DRAWN AND THE SAME WAS ANALYZED FOR MOLY % BY LAB IN CHARGE AND COMPARED WITH THE ANALYSIS GIVEN IN THE IMPORTED DOCUMENTS. FURTHER SMALL CHARGES WERE TAKEN AND ANALYZED. THIS DOCUMENT WAS CALLED JOB WORK ORDER INSTRUCTION SEE PG NO. 746 & 790. THIS DOCUMENT IS AN INTERNAL DOCUMENT SIGNED BY PRODUCTION IN CHARGE MR. KALPEN DESAI GIVING INSTRUCTIONS TO JOB MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 3 WORKER. IT IS CLEARLY MENTIONED MOLY % 0 59.5% IN THE MOLY ORE ON PG. NO. 746 AND MOLY % - 58.29% IN THE MOL8Y ORE ON PG. 790. THUS FROM THE IMPORTED DOCUMENTS AND JOB WORK ORDER INSTRUCTION SHOWS CLEARLY THAT THE TEST ON MOLY ORE CONCENTRATE WERE DONE AND THAT IT WAS CHECKED AND VERIFIED WITH IMPORTED DOCUMENT RESULTS FOR MOLY %. 3 NO CONTEMPORARY AND BASIC RECORD OF LABORATORY TESTING CARRIED OUT AT SILVASSA WAS PRODUCED BEFORE (US) PG. 62 A) SILVASSA UNIT WAS CLOSED IN 2005, WHERE AS SURVEY WAS DONE IN 2006, THEREFORE NO RECORDS WERE FOUND / AVAILABLE AS THE PREMISES AND UNIT DID NOT EXIST. B) SUCH RECORDS HAVE NEVER BEEN ASKED BY A. O. DURING OR AFTER SURVEY, DURING REMAND REPORT OR BY CIT(A). C) DURING COURSE OF HEARING NO SUCH RECORD WAS REQUIRED TO BE PRODUCED BY HONORABLE BENCH. 4 WE ARE UNABLE TO PERSUADE OURSELVES TO BELIEVE THAT ANY KIND OF LABORATORY TESTING COULD BE DONE OF COMMERCIAL SAMPLES WITHOUT THERE BEING A PRIMARY RECORD CONTAINING DETAILS OF THE SAMPLES ON WHICH TEST WAS DONE. TO WHOM THE PRODUCT WHOSE SAMPLE WAS TESTED WAS SOLD; WHO CARRIED OUT THE TESTING; WHO SIGNED THE TESTING REPORT AND WHETHER IT WAS DISPATCHED AND WHETHER ANY OFFICIAL COPY OF SUCH REPORT IS AVAILABLE PG. A) DURING THE COURSE OF HEARING NO SUCH QUERIES WERE RAISED. B) THE VERY FACT THAT 1788 EXCISE INVOICES ARE PERMANENT RECORD BEARING NAME OF THE PARTY, FULL ADDRESS, TIME OF REMOVAL OF GOODS FOR ONWARD DISPATCH AND DATE IS PROOF ENOUGH. EACH INVOICE SHOWS % OF MOLYBDENUM CONTENT AS ANALYZED IN OUR LABORATORY AT SILVASSA AND PRO- RATA EXTRA AMOUNT CHARGED OVER 60% MOLY CONTENT WHICH IS AS PER NORMS. UNLESS THE MATERIAL IS ANALYZED THE SAME CANNOT BE WRITTEN. SEE PAGE 656 661 WITH TRANSPORTER L/R ALSO ATTACHED GIVES DATE, NAME OF THE CUSTOMER AND ADDRESS. THE INVOICES ARE MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 4 62-63 SIGNED BY MR. KALPEN DESAI PRODUCTION IN CHARGE SILVASSA / DAMAN THE TESTING WAS DONE BY PRODUCTION CHEMIST MR. JAYESH PATEL. C) SEE PAGE 744 745 RESUME OF MR. JAYESH PATEL LAB IN CHARGE AND HIS P. F. TILL 16-01-2006. WHEN HE LEFT THE COMPANY. D) SEE PAGE 239 WHERE MORE THAN 100 SUCH EXCISE INVOICES WERE SUBMITTED TO A. O. DURING ASSESSMENT ON 28-2-06. E) SEE PAGE 225 NOTE SUBMITTED ON 14-12-2005 JUST BEFORE SURVEY ON 17-1-2006 ONCE THE ROASTED MOLYBDENUM CONCENTRATE LOT ARRIVES INTO SILVASSA PLANT, WE HAVE A FULL TIME CHEMIST WHO IMMEDIATELY TAKES IT UP FOR ANALYSIS. A FULLY EQUIPPED LAB HAS BEEN ESTABLISHED IN SILVASSA PLANT TO ANALYZE VARIOUS ELEMENTS. F) CENTRAL EXCISE DEPT AUTHORITIES HAVE REGULARLY AUDITED RECORDS OF ASSESSEE (PG. 731) AND ALSO VISITED ASSESSEES PLANT REGULARLY )(PG 327). THE AMOUNT OF EXCISE DUTY PAYABLE DEPENDS ON AMOUNT OF INVOICE. THIS IN TURN DEPENDS ON MOLY % OF THE PRODUCT BEING SOLD. THE HIGHER THE MOLY %, THE HIGHER THE CENTRAL EXCISE DUTY PAYABLE. THE FACT THAT CENTRAL EXCISE DEPT HAS AUDITED AND CONFIRMED THAT THE VALUE OF THE BILLING IS CORRECT IMPLIES THAT THE MOLY % BILLED MATCHES WITH THE ACTUAL CONTENT; WHEN CAN BE ARRIVED AT ONLY AFTER LAB ANALYSIS. 5 IN ONE CASE A REPORT OF 2002 WAS SHOWN TO US IN THE PAPER BOOK BUT IT WAS A LETTER RECEIVED FROM THE CLIENT TO THE A) KINDLY SEE PAGE 404 DATED 06- 09-02 (DURING SILVASSA PLANT IN OPERATION) NOTE THAT JOINT SAMPLING AND ANALYSIS WAS CONDUCTED BETWEEN ESSAR STEEL MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 5 ASSESSEE. LABORATORY TESTING REPORT MEANS THE TESTING DONE AND REPORT PREPARED IN-HOUSE. PG 63 AND ELECTRO FERRO ALLLOYS PVT. LTD. FOR FERRO MOLYBDENUM AND THE SAME WAS CARRIED OUT AT ASSESSEES SILVASSA PLANT. IT IS ALSO WRITTEN THAT SAMPLING, PREPARATION AND ANALYSIS WAS CARRIED OUT AS PER IS (INDIAN STANDARD) NORMS. THIS IS A REPORT MADE AT SILVASSA AS TESTED AND ANALYZED AT SILVASSA PLANT. IT IS NOT A LETTER WRITTEN BY CLIENT TO US. B) WE ALSO BRING TO YOUR KIND ATTENTION THE LETTER WRITTEN BY MATERIALS MANAGER MUKAND LTD. PG. 402 (AFTER SURVEY) WE HAVE BEENREGULARL8Y PURCHASING FERRO MOLY LUMPS FROM YOU FOR TH4E LAST 2 YEARS AND HAVE PURCHASED MORE THAN 85 MT FROM YOU. TYPICALLY EACH LOT VARIES FROM AROUND 2 MT TO 5 MT. THE LAST LOT IS INSPECTED AND DISPATCHED FROM YOUR DAMAN PLANT WAS 4 MT FERRO MOLY LUMPS ON 20-01-06. WE SEND OUR REPRESENTATIVE TO YOUR PLANT EITHER IN SILVASSA IN 2004-05 AND LATER TO YOUR DAMAN FACTORY. HE COMES AND WITNESSES THE CRUSHING OF FERRO MPLYBDENUM SLABS IN A JAW CRUSHER TO FERRO MOLYBDENUM LUMPS AS PER OUR SPECIFICATIONS AND FREE FROM SLAG. THE MATERIAL IS SIEVED TO MET OUR SIZE SPECIFICATION OF 10 100 MM. A REPRESENTATIVE SAMPLE IS DRAWN FROM THE HEAP OF FERRO MOLYBDENUM OFFERED FOR INSPECTION AND ANALYZED IN LABORATORY. IT CLEARLY SAYS THAT SAMPLES WERE DRAWN & ANALYZED JOINTLY IN LAB AT SILVASA / DAMAN IN PRESENCE OF THEIR REPRESENTATIVE. THE MATERIAL WAS PACKED, SEALED & DISPATCHED; MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 6 THIS ALSO PROVES THAT THE MATERIAL WAS BEING ANALYZED IN OUR OWN LABORATORY AT SILVASSA. C) FURTHER PLEASE SEE FOR CLIENTS & CUSTOMERS VISITS ON PG. 412 415 , WHERE CLIENTS HAVE CLEARLY WRITTEN THAT THE PRODUCTS WERE CHECKED IN THEIR PRESENCE IN OUR LABORATORY DISPATCH. THE PARTIES HAVE ALSO REMAINED PRESENT DURING TESTING ETC. 6 IT SHOULD ALSO INDICATE THE PROCESS EMPLOYED FOR TESTING AND THE TEMPERATURE ACHIEVED FOR DETERMINING THE PERCENTAGE OF CONTENTS. PG. 63 A) IN THIS REGARD WE REQUEST YOU TO SEE OUR SUBMISSION TO CIT(A) PAGE NO.653 -654 WHICH IS METHOD OF TESTING OF FERRO MOLYBDENUM BY CHEMICAL METHOD WHICH IS IN SHORT REPRESENTED HERE: 1- 2 GM (ONLY) MATERIAL IS TAKEN DISSOLVED IN ACID THEREAFTER IT IS NEUTRALIZED BY NAOH / AMMONIA THEN FILTERED. THE FILTRATE IS HEATED TO 250C ON HOT PLATE AND THEREAFTER CERTAIN CHEMICALS ARE ADDED AND THE MIXTURE IS HEATED TO ABOUT 500C IN FURNACE. NO MELTING NO POLLUTION VERY SMALL QUANTITIES (WE HAD ALL EQUIPMENTS AT SILVASSA / DAMAN INCLUDING WEIGHING SCALES FURNACE HOT PLATE, GLASSWARE, CHEMICALS ETC.). 7 NOT ONLY THERE WAS ABSENCE OF CONTEMPORARY AND BASIS RECORD THERE IS INHERENT CONTRADICTION IN THE FACTS PRESENTED BY THE ASSESSEE IN THE SENSE THAT ON ONE HAND, IT WAS VEHEMENTLY ARGUED AND SUPPORTED WITH CERTIFICATES THAT MELTING OF MOLYBDENUM AND IRON A) DURING THE COURSE OF HEARING NO EXPLANATION WAS SOUGHT ON SUCH SO CALLED INHERENT CONTRADICTION. IN FACT THERE IS NO CONTRADICTION. LAB TESTING WAS DONE TO FIND OUT THE PERCENTAGE OF VARIOUS COMPONENTS IN THE MATERIAL. THERE IS NO MELTING INVOLVED. MANUFACTURING PROCESS INVOLVES A CHEMICAL EXOTHERMIC REACTION WHICH MELTS ALL THE RAW MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 7 HAS TO BE GOT DONE AT AHMEDABAD DUE TO PROHIBITION IMPOSED BY LOCAL AUTHORITIES TO CARRYOUT SUCH MELTING IN METALLURGICAL PROCESS AT SILVASSA AND ON THE OTHER HAND, IT WAS ARGUED THAT SUCH PROCESS IN FACT AND INDEED WAS CARRIED OUT AT SILVASSA IN THE FORM OF METALLURGICAL LABORATORY TESTING. WE ARE NOT CONVINCED THAT SUCH PROCESS IN THE FORM OF LABORATORY TESTING COULD BE CARRIED OUT AGAINST THE EXPRESS PROHIBITION IMPOSED BY THE AUTHORITIES UNLESS ASSESSEE COULD SHOW THE BASIS RECORDS OF LABORATORY TESTING SUPPORTED BY THE AFFIDAVITS OF CONCERNED OFFICIALS THAT SUCH TESTING WAS INDEED DONE AT SILVASSA, EVEN THOUGH IT WAS ILLEGAL. WE CANNOT ACCEPT ONE PROPOSITION THAT MELTING COULD NOT BE CARRIED OUT AT SILVASSA DUE TO RESTRICTIONS IMPOSED BY THE LOCAL AUTHORITIES. PG 63 MATERIALS (PG 319 SUBMITTED TO A. O. ON 16-3-06). B) THUS YOU WILL OBSERVE THAT NO MELTING IS REQUIRED FOR LAB ANALYSIS OF MOLY %. THE SAMPLE IS EXTREMELY SMALL AND PROCEDURE IS NEITHER HARMFUL NOR POLLUTING. C) FERRO MOLYBDENUM MANUFACTURING METHOD INVOLVES MELTING OF ORE AND THIS IS PROHIBITED AT SILVASSA / DAMAN BY POLLUTION DEPARTMENT AND THUS DONE BY THE JOB WORKER AT AHMEDABAD. THIS HAS NO CONNECTION WITH LAB TESTING BY CHEMICAL METHOD DONE AT SILVASSA / DAMAN. THE LAB TESTING PROCEDURE DOES NOT INVOLVE ANY MELTING AND HENCE DIFFERS FROM MANUFACTURING PROCESS. PLEASE REFER PG. NO.853 WHERE POLLUTION CONTROL COMMITTEE HAS CLEARLY MENTIONED IN POINT NO.(II) THE APPLICANT SHALL NOT CARRY OUT ANY MELTING ACTIVITY. HENCE MANUFACTURING IS BANNED. BUT LAB TESTING IS ALLOWED. 8 IN SPITE OF REPEATED QUESTIONS BY THE DEPARTMENT TO SHOW THE EQUIPMENT WITH WHICH SUCH TESTING WAS CARRIED OUT AT SILVASSA ASSESSEE REMAINED SILENT. ANY LABORATORY TEST OR EXISTENCE OF A) DURING THE COURSE OF SUBMISSION TO A.O. WE HAD PLACED FOLLOWING RECORDS: SR. NO. PARTICULARS PAGE NO. 1 DETAILS OF LAB EQUIPMENT SENT 275-276-285 2 PROOF OF CHEMICALS SENT 748-749-750 MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 8 LABORATORY AT SILVASSA COULD NOT BE ESTABLISHED BY THE ASSESSEE. PG. 63-64 3 A O HAD EXAMINED THE SUPPLIED OF LABORATORY EQUIPMENT BY ISSUING NOTICE U/S 133 WHO GAVE HIS REPLY 476 4 THE REMAND REPORT HAS VERIFIED THE LAB EQUIPMENT AND THE CHEMICALS BEING SENT UNDER 133 945-946-947 5 ALSO CIT(A) ORDER A. Y. 2003-04 CONFIRMS TESTING 24 POINT 13 ALL THESE ASPECTS WERE HIGHLIGHTED DURING THE COURSE OF HEARING OF TH4E APPEAL BUT APPARENTLY, THE SAME IS LOST SIGHT OF. 9 AS PER 15.6 (5) THE HONBLE TRIBUNAL HAS REFERRED TO THE ARGUMENT OF THE DR IN FOLLOWING TERMS: ON THE BASIS OF STATEMENT, THE LD. AO AND LD. DR HAVE STRONGLY ARGUED THAT NO LABORATORY EXISTED AT SILVASSA. NO TESTING WAS CARRIED OUT AT SILVASSA AND ONLY CRUSHING, GRINDING AND SIEVING WAS DONE AT SILVASSA. THE ASSESSEE HAS SOUGHT TO RETRACT THIS STATEMENT BY FILING AFFIDAVITS OF THOSE EMPLOYEES AND REFERRED TO SEVERAL DECISIONS FOR THE PROPOSITION THAT STATEMENT RECORDED DURING THE COURSE OF SURVEY CANNOT BE RELIED UPON UNLESS SUPPORTED BY OTHER EVIDENCES. IN FACT THE ASSESSEE DID NOT REFER TO RETRACTION OF THE STATEMENT IN RELATION TO LAB TESTING AT ALL. IN FACT THE LD. DR WAS FACTUALLY WRONG ASSUMING THAT VARIOUS EMPLOYEES HAVE ADMITTED DURING THE COURSE OF SURVEY THAT NO LABORATORY EXISTED AT SILVASSA. NO TESTING WAS CARRIED OUT AT SILVASSA AND ONLY CRUSHING, GRINDING AND SIEVING WAS DONE AT SILVASSA. THE CORRECT FACTS ARE DURING THE COURSE OF SURVEY EMPLOYEES SPECIFICALLY STAT4E THAT LABORATORY EXISTED AT SILVASSA AND ALL TESTING WAS CARRIED OUT AT SILVASSA. A) THE STATEMENT OF MR. ADARSH JHAVERI (ON THE DAY OF SURVEY) IN HIS ANSWER 14, 15 AND 18, 20 HAS SAID THAT SILVASSA / DAMAN RECEIVES IMPORTED RAW MATERIAL, IT DECIDES CERTAIN RATIOS IN WHICH RAW MATERIAL IS TO BE MELTED, THE PLANT HAS STRICT QUALITY CONTROL THAT THE PLANT CHECKS THE QUALITY CHEMICALLY BEFORE DISPATCHING MAT4RIALS TO THE CUSTOMERS ACCORDING TO CUSTOMERS SPECIFICATIONS THE MATERIAL AFTER MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 9 PACKING IS CHEMICALLY CHECKED FOR QUALITY I. E. CHEMICALLY AND SIZE. HE ALSO S AYS THE TRIAL BATCHES FOR QUALITY CHECKS ARE DONE FOR DETERMINING THE RATIOS IN WHICH MATERIALS ARE TO BE USED I.E. JOB WORK INSTRUCTION. AGAIN IN ANSWER 18 HE SAYS THAT THE UNIT SILVASSA / DAMAN CARRIES OUT QU ALITY CHECK. PLEASE KINDLY GO THROUGH HIS ANSWERS 14, 15 & 18 WHICH GIVE DETAILS. I N REPLY NO.20 LAST SENTENCEIN SILVASSA UNIT, THERE WAS A FULL FLEDGED CHEMICAL LAB. IS SELF EXPLANATORY. B) MR. YOGESH MODI, ACCOUNTANT HAS ALSO TALKED ABOUT TESTING AT SILVASSA GIVEN ON PAGE. 421 DURING SURVEY A-4 AT DAMAN, SAMPLES ARE BEING TAKEN FROM MATERIAL, FOR TESTING FROM THE DRUMS. AFTER FURTHER TECHNICAL PROCESS (TRIALS FOR JOB WORK INSTRUCTIONS) IS DONE, MATERIAL IS SENT TO AHMEDABAD. C) MR. KALPEN DESAI, WORKS IN CHARGE U/S 131 PAGE 939, ANS. 10 GIVES DETAILS OF TESTING TALKS ABOUT TAKING TRIAL BATCHES AND TESTED BY LAB IN CHARGE MR. JAYESH PATEL WHO WOULD ALSO TEST THE MATERIAL TO COMPARE WITH THE CERTIFICATE OF CONTENTS SENT BY THE SUPPLIER. HE TALKS ABOUT TRIAL BATCHES AND JOB WORK ORDER. D) MR. RAJKUMAR SINH, WORKER OF SILVASSA UNIT IN RESPONSE TO SUMMONS U/S. 131 FOR REMAND REPORT ON PAGE 446 ANS. 5. SAYS WHEN TRUCKS WITH MOLY ORE COME TO OUR PLANT WE TAKE SMALL TRIAL MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 10 BATCHES REPEATEDLY ETC. THEREAFTER THE SAMPLES ARE TESTED & DISPATCHED ACCORDING TO ORDER. E) MR. SANJOY PRAMANIK, ASSISTANT PLANT INCHARGE, SILVASSA. IN RESPONSE TO SUMMONS ISSUE U/S 131 REMAND REPORT PAGE 441A ANS-1O TALKS ABOUT THE CHEMIST MR. JAYESH PATEL, LABORATORY IN CHARGE AND TRIAL BATCHES BEING TAKEN. HE ALSO SAYS THAT MR. JAYESH PATEL TESTED RAW MATERIALS AS WELL AS TRIAL BATCH FINAL PRODUCT AFTER CONDUCTING ANALYSIS. FURTHER THE JOB WORK ORDER WAS SENT AHMEDABAD AND INSTRUCTION AND GUIDANCE WAS GIVEN REGULARLY. F) ALSO IN THE AFFIDAVITS OF MR, KALPEN DESAI OF PAGE 589 AND MR, SACHIDANAND JHA ON PAGE 308 2 ND LAST PARA HAVE TALKED ABOUT TESTING AND LABORATORY. WHEN THE AUTHORITIES KNEW ABOUT THE EXISTENCE OF TH E LABORATORY FROM THE STATEMENTS OF MR. ADARSH JHAVERI AND FROM THE STATE MENT OF MR. YOGESH MODI DURING SURVEY, WHY WAS NO QUESTION RAISED ABOU T LABORATORY DURING THE SURVEY? HOW HAS THE DEPT ARRIVED AT THE CONCLUS ION 'NO LABORATORY AT SILVASSA / DAMAN'? IN FACT SILVASSA UNIT WAS CLOSED DURING THE SURVEY AND THEY COULD NOT HAVE SEEN IT OPERATIONAL. WHILE AS I N DAMAN THEY SAW BUT DID NOT RECORD. ALSO NO LAB WAS FOUND AT AHMEDABAD UNIT. THE AHMEDABAD UNIT WAS STILL RUNNING WHEN SURVEY WAS CO NDUCTED ON 17-1-06. THE ITAT ORDER ON PAGE 62 (6 TH LAST LINE) ACKNOWLEDGES THAT MOLY % WAS BEING ANALYZED BY ASSESSEE. AS THE SURVEY TEAM ON 1 7-1-06 DID NOT FIND ANY LAB IN THE AHMEDABAD UNIT; IT IS ESTABLISHED TH AT THE MOLY % WAS ANALYZED AFTER CRUSHING AT ASSESSEE'S SILVASSA UNIT . DURING SURVEY ON 17-01-06 WHEN 6 IT OFFICIALS VISIT ED DAMAN, THEY HAVE ALREADY SEEN THE MATERIAL CRUSHING, GRINDING, SIEVI NG, SIZE REDUCTION AND SIZE SEPARATION OPERATIONS WITH HELP OF MACHINERY I NTO LUMPS, CHIPS AND POWDER AND ALL 6 OFFICIALS SAW EVERY ACTIVITY, BUT THEY HAVE NOT MENTIONED IN THEIR REPORT. THEREFORE WE IMMEDIATELY BROUGHT T O THEIR ATTENTION VIDE OUR LETTER DATED 01-02-06 ON PAGE 229-231. ALSO NOTE THAT WHEN 2543 KGS. OF FERRO MOLYBDENUM S LABS WERE UNLOADED DURING SURVEY ON 17-01-06 WHICH WAS DISPATCHED ON 1 6-01-06 FROM MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 11 AHMEDABAD. ALL THE 6 OFFICERS HAVE SEEN THE SAME AN D THEY HAVE ALSO SEEN THE SAME BEING UNLOADED BY OUR OWN WORKERS WIT HOUT OUTSIDE HELP OR ANY OTHER EXTRA PAYMENTS. THEY HAVE ALSO SEEN THE S LABS BEING BROUGHT IN AND RECORDED IN THE EXCISE LEDGER. THIS HAS BEEN GI VEN ON PAGE NO. 489- 490 LR ON PG. 931. AND WAS BROUGHT TO THEIR NOTICE VIDE L ETTER DATED 1-02- 06, IMMEDIATELY AFTER THE SURVEY WAS DONE. SIMILAR IS THE CASE DURING REMAND REPORT WHERE IT O FFICIAL - MR. V. SIVARAMAN VISITED DAMAN UNIT ON 02-01-2007 AND SAW OUR PROCESSES AND LAB AND MET LAB CHEMIST AND EMPLOYEES BUT! DID NOT REPORT THE SAME IN THE REMAND REPORT. WE IMMEDIATELY WROTE LETTER THAT THE REPRESENTATIVE OF THE AO IN THE REMAND REPORT HAS NOT WRITTEN ABOUT THE L ABORATORY ON PG.447. (THIS WAS OF COURSE AFTER THE SURVEY, DURING REMAND REPORT PROCEEDING.) THE LEARNED AR RESPECTFULLY SUBMITTED THAT THE TRIB UNAL MAY ACCEPT THE PRAYER OF THE APPLICANT AS STATED ABOVE AND REC TIFY THE ORDER OF THE TRIBUNAL. THE LEARNED DR STOUTLY OPPOSED TO THE SUB MISSION OF THE LEARNED AR AND CONTENDED THAT ANY MODIFICATION IN T HE ORDER OF THE TRIBUNAL WILL AMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL AND THE SAME IS NOT PERMISSIBLE UNDER LAW. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS PRESENTED BEFORE US. IT IS APPARENT FROM THE SUBMISSIONS OF THE LEARNED AR AS CLAIMED BY THE LEARNED DR THAT MO DIFICATION SOUGHT BY THE APPLICANT IN THE INSTANT CASE WILL AM OUNT TO REVIEW OF OUR ORDER WHICH IS BARRED BY LAW. THE TRIBUNAL ELAB ORATELY CONSIDERING THE FACTS OF THE CASE HAS ARRIVED AT SE VERAL FINDINGS WHICH IF NOW ALTERED WILL AMOUNT TO REVIEW OF ITS ORDER. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE MISC. APPLICATION OF T HE ASSESSEE DESERVES TO BE DISMISSED. IT IS ORDERED ACCORDINGLY . MA NO.137/AHD/2011 (IN ITA NO.4526/AHD/2007 AY: 2003-04 ELECTRO FERRO ALLOYS PVT. LTD. VS ITO, W-4(1), AHME DABAD 12 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20-04-2012. SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD