2004 (2) TMI 516

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.... Shri L. Narasimha Murthy, JDR, for the Respondent. [Order per : G.A. Brahma Deva, Member (J), (Oral)]. -  This is an appeal filed by M/s. Nandi Sahakari Sakkare Karkhane Niyamit, Bijapur, against the Order-in-Appeal No. 196/2003-C.E., dated 26-6-2003 passed by the Commissioner of Central Excise (Appeals) Mangalore. 2. Shri K.S. Ravi Shankar learned Advocate appeared for the a....

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....t of any manufacturing process. He relied on the decision of the Tribunal in the case of HPCL v. CCE, Visak reported in 2002 (144) E.L.T. 555 (Tri. Bang.) and CCE v. West Coast Industrial Gases Ltd., reported in 2003 (155) E.L.T. 11 (S.C.). He also pleaded that the Commissioner (Appeals) in his order has upheld confirmation of demand of Rs. 94,149/- and imposition of penalty under Rule 57S(2)(c) o....

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....88,429/- (duty works out to Rs. 94,149/-) generated in their factory of production out of the old capital goods on which Modvat credit has been availed. Thus even though Rule 57S(2)(c) has not been invoked in the show-cause notice, mention of a wrong section for recovery of the duty does not vitiate the demand confirmed. 5. We have carefully considered the submissions made by both sides. W....

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....e absence of clear linking of the capital goods on which credit was taken and which were scrapped the appellants would not have got proper opportunity to defend the allegations. The show cause notice itself is defective and does not invoke the provisions of Rule 57S of the Central Excise Rules. These cannot be invoked by the Commissioner (Appeals) at the appellate stage. The lower authority has no....