- (1.) The only question which is the subject matter of challenge before us is the finding recorded by the tribunal in paragraph 26 of its judgement. That paragraph reads as under : "On the question of limitation, we observe that a lot of emphasis was laid by the appellant that between 1981 and 1986, Chartered/cost Accountant's - 194 Certificates were being accepted and prices were being approved by the department and that the department had not filed any appeal against these orders and as the certificates were accepted after proper verification, the question of invoking the Proviso the Section 11a does not arise. However, from the evidence on record and the findings given by the Collector which have not been controverted, it is evident that the certificates were given without verifying the books and that such books were not maintained by the appellants and therefore, the veracity of the certificates was in doubt and this came to light only after detailed investigation. "the tribunal, therefore, came to the conclusion that there was suppression and wilful mis-statement to evade payment of duty and therefore, the proviso to Section 11a of the central Excises and Salt Act, 1944 was rightly invoked and the demand was not hit by limitation. The grievance of the ' learned counsel for the appellant is that the statement of the tribunal that the findings given by the Collector had not been controverted is not accurate as the same had been controverted specifically which is evident from paragraph 8 of the tribunal's order. Counsel further stated that what was not disputed was the statement of the Collector to the effect that the statement of Shri Tankasale that the various over-heads were initially taken at 40% of the selling price but were subsequently reduced to 32.5% on the basis of the letter from the Production Manager, a fact which was further corroborated by the statement of Shri V. P. bake, another Chartered Accountant and Shri N. C. . , Cost Accountant. It is only this limited fact which was not disputed. However, the finding of the Collector that the assessee was guilty of suppression and wilful mis-statement was clearly put in issue as is evident from the submission recorded at paragraph 8 of the tribunal's order which was controverted in the submissions of the department also. Therefore, contends the learned counsel for the assessee, the tribunal had committed an error in observing that the assessee had not controverted the findings of the Collector. That is not accurate. We think that there is justification for this contention. We, therefore, deem it appropriate to remit the matter to the tribunal for a decision on this question.
(2.) The further contention of the learned counsel for the assessee was that when the tribunal was remitting the entire matter, it ought not to have foreclosed its contention based on the proviso to Section 11a of the Act. We do not propose to go into this contention. Since we are remitting the matter to the tribunal on the question whether the Collector was right in concluding that the assessee was guilty of suppression and wilful mis-statement, the further order that the tribunal may have to pass would be dependent upon the conclusion that it may reach on this issue.
(3.) We allow this appeal and remit the matter to the tribunal on the aforementioned short question. Since the issue is short, we hope the tribunal will be able to give priority to the matter and dispose it of at an early date so that the matter which is remitted to the Collector may not get delayed.;