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TAXAP/187/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 187 of 2011
With
CIVIL
APPLICATION No. 113 of 2011
In
TAX
APPEAL No. 187 of 2011
=========================================================
M/S
KWALITY TUBE INDUSTRIES & 1 - Appellant(s)
Versus
CCE,
DAMAN - Opponent(s)
=========================================================
Appearance
:
MR
ADIL R MIRZA
for
Appellant(s) : 1 - 2.
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI 28th February 2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Assessee has challenged the judgment dated 8th
October 2010 passed by the Customs, Excise & Service Tax
Appellate Tribunal, West Zone Bench, Ahmedabad [hereinafter referred
to as, “the Tribunal”]
confirming the duty and penalty demanded by the Assessing Officer
which was confirmed by the appellate authority. Counsel for the
appellant submitted that proper procedure was not followed to
establish that the goods were under valued. He drew our attention to
Rule 4 of the Central Excise [Valuation] Rules, 1975 to contend that
the Department had not undertaken any exercise of comparing the value
of the goods sold by the assessee for delivery at the nearest point
of time, compared to the sale of the goods in question.
From
perusal of the orders under challenge, and particularly that of the
Tribunal, we find that the entire issue has been examined at length
and on the facts, the Tribunal came to the conclusion that the goods
were under-valued. The Tribunal
concluded these issues against the assessee by observing as follows
:-
“Learned
advocate appearing on behalf of the appellants, though advanced
number of arguments, but fairly agreed that he is not able to show
that the value at which the goods were being sold to M/s. Deepesh
Trading Company was the value at which the same goods were being sold
by M/s. Kwality Tubes Industries to other independent whole-sale
buyers. He also admitted that Proprietor of M/s. Kwality Tubes
Industries being the partner of M/s. Deepesh Trading Company and
other partners being close family members like his daughter-in-law.
It is also a fact that the goods were being cleared to said M/s.
Deepesh Tading Company at a lower value. In view of the above factual
reasons, we find no infirmity in the views adopted by the authorities
below. Accordingly, demand of duty of R. 4,41,407/= stand confirmed
against the appellant.
Further, the demand of duty
of Rs. 5,81,310/= stand confirmed on the ground that Copper
pipes/tubes/coils stand cleared by /s. Kwality Tubes Industries
without payment of duty. The said demand is based upon the recovery
of octroi receipts from the unit of M/s. Deepesh Trading Company,
reflecting upon the movement of the goods. In as much as M/s, Kwality
Tubes Industries could not place any corresponding invoice showing
clearance of the goods relateable to the said octroi receipts,
Revenue entertained a view that the said goods were removed
clandestinely. Accordingly, investigations were conducted and
statement of proprietor of M/s. Kwality Tubes Industries were
recorded, wherein he admitted having cleared the goods without
payment of duty. The said statement does not stand retracted by the
proprietor. As such, we find that there is enough material reflecting
upon the act of clandestine removal by M/s. Kwality Tubes Industries.
Accordingly, demand of rs. 5,81,310/= is upheld.”
We
do not find any question of law, much less substantial question of
law, arising in this Appeal. The Tribunal has taken into account the
evidence on record and come to a factual finding, which is not shown
to be perverse. Additionally, the procedure laid down in Rule-4 is
not only parameter for ascertaining
undervaluation of goods, but reference can also be made to Rules 5 &
6 of the Rules which gives further power to the Assessing Officer to
detect the cases of under-valuation. No case is made out. Tax Appeal
stands dismissed.
Imposition
of penalty was subsequent to confirmation of the duty demanded.
Hence, Civil Application No. 113 of 2011 has no merits and is
accordingly rejected.
{Akil
Kureshi, J.}
{Ms.
Sonia Gokani, J.}
Prakash*
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