- (1.) HEARD learned counsel for the appellant.
(2.) IN this appeal, following questions are raised stating that these questions involves substantial issue of law : 1. "Whether the addition on account of profit on alleged suppressed sales amounting to Rs. 6,76,175 is sustainable merely on the basis of alleged disparity in power consumption and without any iota of evidence relating to alleged production or sale ?" 2. "Whether non-production of Central excise records before learned Tribunal when the same was not demanded by the learned Tribunal can be the basis for drawing adverse inference against the assessee particularly when in assessee's own case the learned Tribunal has been consistently holding that the assessee is maintaining Central excise records, complete books of accounts, complete details of production and electricity consumption ?" "Whether in view of the finding of fact recorded by learned CIT(A) that the facts of earlier orders and the present case are same and that in absence of any specific discrepancy in sales and purchase recorded by the assessee no addition can be made merely on the basis of variation in consumption of power, the reversal of the well-reasoned order of CIT(A) is justified ?" 3 The basic issue behind all these three questions is whether assessee has suppressed any sales. In para 5 of its order, the Tribunal has considered the fact that in the preceding year, the assessee has maintained day-to-day production accounts which are subject to check by the Central excise authorities and nothing against was found by the Central excise authorities which shows that assessee has suppressed its production in any manner. Those records were also verified by Dy. CIT and no defect was found in the preceding year. This year, the assessee has not produced any such record. Not only that the AO has also said in its order in para 7 that assessee has not maintained day-to-day production chart nor he has explained the discrepancy with some authentic evidence so as to prove that the accounted version is correct. Whether assessee has suppressed the sales on the facts given, is basically a question of fact. No substantial question of law does arise.
(3.) HOWEVER, if the assessee has maintained day-to-day production account which is subject to verification of Central Excise Department and which was readily available at the time of hearing before the Tribunal, in the interest of justice we give liberty to the appellant-assessee to move the miscellaneous application before the Tribunal and Tribunal shall pass a fresh order after giving opportunity to him of being heard. The appeal stands dismissed with the above directions.;