Commissioner of GST & Central Excise Vs Mica Mold (Jharkhand High Court)
Conclusion: Clubbing of clearance values of proprietorship and Pvt Ltd Company for the purpose Excise Duty Assessment was remanded back to Tribunal on the basis of the principle as to whether the order assailed suffered from perversity or not.
Held: Revenue argued that M/s M M in collusion with M/s MMPL indulged in evasion of duty of misusing small scale Exemption Notification as well as clandestine removal of the goods. During search some incriminating documents were recovered. The Indian currency worth Rs. 1.31 crore were also recovered from the office premises of MM & MMPL and the same were detained. Similarly during search operation at residential premises of one of the staff of MM, Indian currency note worth Rs.3.0 crore were recovered and detained. Subsequently, out of detained Indian currency notes, currency notes of Rs. 1,22,56,966/- were seized under Section 110 of the Customs Act read with Section 12 of the Central Excise Act, 1944. MM during the period from 2003-04 up to 07.11.2007 by suppression of materials facts in collusion with MMPL evades Central Excise duty. MMPL had been created by Arun Agarawal, proprietor of MM, subsequently and both the factories MM and MMPL belong to him and his Hindu Undivided Family. Based on the aforesaid investigation and the documents available on records and the statement recorded u/s 14 of the CEA, a show-Cause Notice was issued to the Respondent Assessee by the Department. The case was decided against assessee and the adjudicating authority confirmed the amount along with interest and penalty. Assessee aggrieved by this filed an appeal before CESTAT, Kolkata. After which the matter was remanded setting aside the Penalty. Against the order of CESTAT the present appeal was filed by the department. It was held that the issue of clubbing together for the purpose of getting exemption required consideration on the basis of the transaction of the business which could not be assessed only on the basis of the fact that one unit was a Proprietary concern and another was Private Limited Company. The issue had been raised that assessee had not raised the issue of perversity. Even accepting that the issue of perversity had not been raised but if the error was apparent on the face of the order, then the Court while considering the propriety of the order which had been challenged was to consider on the basis of the principle as to whether the order assailed suffered from perversity or not. ‘Perversity’ means that if anything had not been considered if so placed or erroneously been considered and if that be so, it is incumbent upon the Court to law to go into the propriety of the order by taking into consideration the issue of perversity. The matter whether value of clearances of MM and MMPL were to be clubbed for determining Central Excise duty payable as MMPL should be remitted before the tribunal for passing order afresh on consideration of the relevant documents which were available on record.
