AI Structured Summary
Not yet generated for this judgment
Judgment
This appeal has been filed by the MESSERS GROWMORE CERAMICS PVT LTD against the order of Commissioner confirming demand of
service tax. This is the third time the matter has reached the tribunal. The issue involved relates to interpretation of a document recovered by revenue
during investigation. The demand is based on sales register retrieved from the computer which does not stands reflected in the statutory records of the
sales for the year 1999-2000. In the first remand order tribunal dated 26.11.2007 observed as follows:
“2.It is seen that the period involved in the present appeal is 1999-2000 and 2000-2001. The demand is based upon the sale register
retrieved from the computer, which does not stand reflected in statutory records. By drawing our attention to the said sale register for the
year 199- 2000, Shri Dave submits that the total clearances shown in the said register was to the tune of Rs.72,22,250/; The sale was further
shown in the computer printout as bifurcated in respect of two varieties i.e. OPEAK and TR. Transportation chargers were separately shown
and 12% tax was also shown separately. He submits that if the total of sales of two varieties and along with tax and transportation charges is
taken into consideration, the same would amount to Rs.72,22,250; which figure is separately shown as total sale in the said computer
printout. However, the Commissioner instead of taking the total sale as Rs. 72,22,250; has erroneously taken the sum total of all the figures
and had arrived at a sale of Rs. 1,44,44,500;
We have seen the relevant page for the said entry. Total sale shown as Rs. 72,22,250/- is the sum total of the sale of two varieties as also
tax and transportation. As such, we agree with the ld. Advocate that there is no justification by doubling the said sale figures.
Similarly, we have been shown discrepancies while arriving at a sale figure for the year 2000-2001. Apart from showing the actual sale
value for a particular month, the appellants have also shown the outstanding recovery amount of sales made in the preceding months and
the amount recovered in that particular month. The Commissioner has made sum total of all the figures and have arrived at a clearance
figure, which is much higher than the actual clearance figure. This become clear from the fact that the amount shown as outstanding
recovery amount in one month stands carried forward in the next month and the actual recoveries made in that months are subtracted. As
such, it is the progressive total, which has to be taken into consideration. Without going into the details of each and every month, as we feel
convinced that the clandestine removal figures have not been computed correctly, we set aside the impugned order and remand the matter
to Commissioner to re-quantify the demand after taking into note of the above discrepancies pointed out by the appellants. Needless to say
that the appellants would be given an opportunity to put forth their case before the Adjudicating Authority.
Inasmuch as the matter stand remanded for re-quantification of duty, the Commissioner would quantify the penalty amount accordingly.
The grievance of M/s. Saffron Glass & Ceramics, as regards the imposition of penalty, in respect of their being considered as dummy unit,
would also to be looked into by the Adjudicating Authority. Similarly, penalty imposition on Shri A.D. Kaneria would also be examined.
In a nutshell, all the three appeals are allowed by way of remand in terms of observations made by us in the preceding paragraphsâ€.
After this first remand order dated 26.11.2007 the matter was again adjudicated by commissioner vide order no 40/COMMR./2009 dated
31.08.2009. In the said order the commissioner citing largely from the OIO 13/COMMR/2003 dated 11.07.2003 (which was earlier set aside by
tribunal order dated 26.11.2007 cited above) came to the conclusion that the demand was correctly made and reconfirmed the same. The matter was
again agitated by the appellant before tribunal. After examining the observations made in the earlier order of tribunal dated 26.11.2007, the order of
the commissioner was set aside and matter was remanded again. The tribunal in its second order dated 24.01.2019 made following observations.
“6. We have gone through the rival submissions we find that Tribunal vide Order No. A/2966 to 2968/WZB/AHD/2007 dated
26.11.2007, in respect of issue relating to the value of clandestine clearances as per computerized sales record, observed as follows.
“2. It is seen that the period involved in the present appeal is 1999-2000 and 2000-01. The demand is based upon the sale register
retrieved from the computer, which does not stand reflected in statutory records. By drawing our attention to the said sale register for the
year 1999-2000, sh. Dave submits that the total clearances shown in the said register was to the tune of Rs. 72,22,250/-.The said sale was
further shown in the computer printout as bifurcated in respect of two varieties i.e. OPEAK and TR. Transportation charges were separately
shown and 12% tax was also shown separately. He submits that if the total of the sales of two varieties and along with tax and
transportation charge is taken into consideration, the same would amount to Rs. 72,22,250/-, which figure is separately shown as total sale
in the said computer print. However, the commissioner instead of taking the total sale as Rs. 72,22,250/-, has erroneously taken the sum
total of all the figure and had arrived at a sale of Rs. 1,44,44,500/-
We have seen the relevant page for the said entry. Total sale shown as Rs. 72,22,250/- is the sum total of the sale of two varieties as also
tax and transportation. As such, we agree with the Ld. Advocate that there is no jurisdiction by doubling the said sale figures.â€
It is clear from the above that the issue regarding the duplication of demand has been finalized by Tribunal and Commissioner has no
jurisdiction to question the said decision. If Revenue had any doubt regarding the aforesaid decision they should challenged the said
decision of the Tribunal. Having failed to challenge the said decision it become final and binding on Commissioner. Thus, the impugned
order is being in violation of Tribunal order is set aside.
As regard, the issue raised by Revenue regarding non confirmation of the interest in the order portion since, impugned order has been set
aside for the re-quantification, the matter regarding interest will be decided a fresh by the lower authority. As regard, the second issue
raised by the Revenue relating to the adjustment of outstanding the same requires re-examination as the total clearances/ sales have to be
re-quantified and the duty liability re-calculated after re-quantification of the sales value arrived at on the basis of computerized sales
register, in light of Tribunal decision dated 26.11.2007.
In the view of above impugned order is set aside and matter remanded to the adjudicating authority to pass a fresh adjudication order in
terms of the Tribunal order dated 26.11.2007 by which the matter was remanded to the adjudicating order.â€
2.1 Thereafter, the matter was taken up for the adjudication by Commissioner once more and vide the order dated 16.04.2020 impugned in this
proceedings the demand was once again confirmed ignoring the observation made by the tribunal twice over. It is observed that in the impugned order
commissioner has observed as follows:
“03.07 In the instant matter, I have noted that Hon’ble Tribunal under Order No. A/10175-10176/2019 dated 24.01.2019 has set
aside the OIO No.40/COMMR./2009 dated 31.08.2009 passed by Commissioner and remanded to pass a fresh adjudication in terms of
the Tribunal’s earlier order dated 26.11.2007 by which the matter was remanded.
03.08 From the earlier order dated 26.11.2007 of Hon’ble Tribunal at Para 2, I have noted that the said para was pertaining to the
duplication in calculation of duty for the year 1999-2000 and further, at Para 3, discrepancies while arriving at sale figures for the year
2000-2001 as against the submissions made before by M/s. GCPL. As against the first submission the Hon’ble Tribunal has
observed, a text of which is reproduced as under:
“We have seen the relevant page for the said entry. The total sale shown as Rs. 72,22,250/- is the sum total of the sale of two varieties as also tax
and transportation. As such, we agree with the ld. Advocate that there is no justification by doubling the said sale figures.â€
For further submission, the Hon’ble Tribunal has observed, a text of which is reproduced as underâ€
“……..without going into the details of each and every month, as we feel convinced that the clandestine removal figures have not
been computed correctly, we set aside the impugned order and remand the matter to Commissioner to re-quantify the demand after
taking into note of the above discrepancies pointed out by the appellants……..â€
2.2 Thereafter the impugned order has once again confirmed the entire demand without following the direction in the first tribunal order dated
26.11.2007 and also the second tribunal order dated 24.01.2019 . The fact of duplication of demand has been specifically examined in both the
tribunal’s order and the finding of both the orders are very clear and precise leaving no scope for interpretation. Even if the Adjudicating Authority
had any doubts regarding what was stated in the first tribunal order dated 26.11.2007 the same was clarified in the second tribunal order dated
24.01.2019. In case the commissioner was aggrieved by the observation of the second tribunal order dated 24.01.2019 the right course of action was
to take the matter to the higher forum and not to ignore the same.
In view of above we find that the impugned order passed directly in violation of two tribunal’s orders is bad in law and is therefore set aside.
The matter once again remanded to the Adjudicating Authority for fresh adjudication following the directions made in earlier order of tribunal dated
26.11.2007 and repeated in its order dated 24.01.2019
Appeal is allowed by way of remand.
(Pronounced in open court on 02.03.2021)