Judgment:
1. Learned D.R. appearing for the Revenue has submitted that there was no self-speaking terms in the Appellate Order as to whether the other two stock registers maintained by the assessee/respondent company, can be considered to be reliable statutory records or not. He did not dispute the maintenance of the RG-12 register for recording the stock.
But he contended that the other two stock registers, which are neither statutory nor relatable to the Excise Law, should not have been the basis to grant relief by the learned First Appellate Authority to the respondent company. If such practice of maintenance of the so-called registers is admitted, that will gradually gain recognition and there shall be abuse of the process of law, which should be brought to an end. If such type of registers, which is not prescribed by law, is maintained by the assessee, that might give shelter for clandestine removal to explain shortage or excess of goods in the factory. Such oblique purpose cannot be well served, if no statutory sanction is given to the registers relied upon by the assessee/respondent company herein. In this connection, he drew attention to Page 3 of the Order-in-Original, which states that the assessee/respondent company wanted to manage the excess production through a new register.
According to the learned D.R., whether such register was an authentic record under the process of law or not, was not examined by the learned First Appellate Authority. It was his further submission that some records were maintained by them in respect of even a holiday showing particulars of a day's production. Therefore, he submitted that in view of the legal question that has arisen out of the Order of the learned First Appellate Authority, the impugned Order calls for a re-look.
2. On the other hand, the learned Counsel for the assessee/respondent company submitted that entire set of records was examined by the Commissioner (Appeals) and those were considered as statutory records.
Therefore, the First Appellate Authority's Order, which is reasoned and self-speaking, should sustain.
3. On a careful consideration of the finding in the Order-in-Original, which was the basis for deciding the appeal, it transpires that the question as to whether the registers relied upon by the learned Commissioner (Appeals), were statutory records and can be relied upon or not, was not decided by that Authority. That Order does not self-speak as to the authenticity of such records in the eyes of law and as to whether such records were ever relied upon by the Excise Authorities for stock-reconciliation and recording of the stock or not.
If that was not done, reliability of the stock registers maintained by the assessee/respondent company in this case, is questionable.
4. Conclusion of the learned Commissioner (Appeals), on which seven points [viz. (i) to (vii)] at page-7 of the Appellate Order were drawn was out of the set of facts before him. It is only just and proper, if the set of facts are proved by evidence if such evidence found admissible and relevant in the eyes of law. When facts relied upon without ascertaining the nature and character of evidence, the decision becomes irrational. Therefore, it has become necessary for the learned Commissioner (Appeals) to come to the conclusion whether registers relied upon explaining re-conciliation of the discrepancy of the stock, which was the subject matter of the Order-in-Original, were the statutory records maintained and reliable piece of evidence. If that is not so, different conclusion may be drawn and the appeal be re-disposed accordingly.
5. Before parting with the matter, it is also necessary to state that when an impugned Order does not sustain in the eyes of law, the ultimate conclusion should be that the impugned Order, ipso-facto, gets set aside having no legs to stand. Such aspect may be looked into while re-disposing the appeal presently set aside to the file of the learned First Appellate Authority. In the result, the Appellate Order is set aside with the aforesaid directions for re-doing.
6. Against the aforesaid appeal, a Cross Objection was filed by the assessee/respondent company supporting the First Appellate Order. When no different grounds were taken in Cross Objection, the same is hereby dismissed.