2013 (8) TMI 204

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.... the Central Excise Tariff Act, 1985 and they are registered with Central Excise department for trading excisable goods. During the visit by Divisional Preventive staff to the premises of the appellant on 30.07.2008, a quantity of 20.100 MT of Silicon Manganese involving cenvat credit of Rs.2,14,483/- was found short which was admitted by Shri Darbara Singh, partner of the appellant but they could not explain the reasons for the shortage. A show cause notice dated 30.1.2009 was issued to the appellant for debarring them from passing on the credit of Rs.2,14,483/- for imposition of penalty on the appellant under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944 and for imposition of penalty on the partn....

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....und that the appellant are liable to penalty under Rule 25 of the Rules whereas this benefit is available under section 11AC. He submits that the Commissioner (Appeals) has travelled beyond the parameters set out in show cause notice. He submits that the Commissioner (Appeals) is not justified in extending the provisions of section 11AC when it had originally proposed in the show cause notice. The impugned order was passed beyond the contents of show cause notice, the same is liable to be set aside. He submits that even the original adjudicating authority while passing the order imposed the penalty under Rule 25 read with section 11AC. He did not impose penalty only under Rule 25 but he specifically mentioned Rule 25 read with 11AC in his o....

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....nvokable for short levy or non-levy of duty which is relevant to cases of manufacturers and not to the cases of the dealers, as the case of the appellant. Therefore the plea of the appellant that the appellant deposited 25% of the duty on 12.02.09 within 30 days of the issue of show cause notice dated 30.01.09 and that the adjudicating authority cannot deny the benefit available to them, is not relevant as they are liable to penalty under Rule 25 of the Rules. 7. Also I have gone through the submissions made by the appellants and DR. I find that Commissioner (Appeals) has thoroughly gone through the facts of the case. It is admitted case of shortage. Further, I observe that the copy of statement of the partner of the appellant tendered ....