2011 (2) TMI 655

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....Delhi (in short "the Tribunal") on following substantial questions of law : "(a)  Whether the Ld. CESTAT is right in confirming duty demand on 241.550 MT of Sponge Iron without tangible and cogent evidence, cross examination of Sri P.K. Sarkar, without confession of guilt and simply on the basis of loose sheets of uncertain authorship and statement of Sri P.K. Sarkar who was not incharge of factory gate during the material period? (b)    Whether the Ld. CESTAT is right in drawing presumption that 150.110 M.T. of Sponge Iron were cleared without payment of duty and not used captively for manufacture of 102.093 MT of MS Ingots simply because no invoices for captive consumption U/r 11 were issued? (c)    W....

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....interest towards sponge iron found short under Section 11AB, for recovery of central excise duty for 241.55 MT of sponge iron clandestinely cleared on the basis of loose sheets and for imposition of penalty under Rule 25(1) of the Central Excise Rules, 2002 read with Section 11AC of the Act, 1944. 3. The Additional Commissioner, vide order-in-original dated 28-11-2006, confirmed the duty demand along with interest on MS ingots found excess and seized materials were confiscated with option to be redeemed on payment of redemption fine of Rs. 3,00,000/- and penalty of Rs. 50,000/- was also imposed under Rule 25(1) of the Rules, 2002. 4. On appeal, the Commissioner (Appeals) upheld the demand of duty with interest on the shortage of....

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....ty of the respondent's appeal before the learned Tribunal on the ground that review of the order-in-appeal dated 31-5-2007 by the Committee of Commissioners was not made in accordance with Section 35B(2) as there was no joint sitting and deliberations between the two members of the Committee. The two members of the Committee reviewed the order-in-appeal dated 31-5-2007 on two different dates i.e. 7-9-2007 and 10-9-2007 and thus, on none of these two dates, there was a valid Committee of Commissioners competent to review, as contemplated under Section 35B(2) and therefore, the respondent's appeal and authorization to file appeal is illegal and unauthorized. Specific objection with regard to maintainability was taken by the appellant in para-....

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.... & Ptng Works - 2008 (232) E.L.T. 775 (Guj.) = 2010 (18) S.T.R. 353 (Guj.) interpreting Section 35B(2) of the Act, it has been held that the formation of opinion, as contemplated in Section 35B(2) of the Act, is a mandatory requirement, which cannot be treated to be a procedural formality. In a given case, it would be always open to the Tribunal to call upon the department to point out to the Tribunal as to whether an opinion has or has not been formed by the Commissioners before appeal was preferred, either by Commissioner himself or by the aforesaid Commissioners. The formation of opinion by the Commissioner has to be prior to the point of time when the appeal is preferred. 12. In Anurag Ferro Products (P) Ltd. - 2008 (230) E.L.T. 5....