TaxTMI 
TaxTMI 
2014 (5) TMI 791
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....r Rule 96ZP(1) of Central Excise Rules, 1944, in respect of compounded levy scheme. 2. The appellant, herein, was served with two show cause notices subsequent to physical verification of the dia of the rolling mill i.e., Gear Box/pinion stand on 21-8-1999. The Center to Center distance was found as 261 mm in respect of upper two pinions and as 258 mm in respect of the lower two pinions as against the declared 245 mm in the declaration dated 1-9-1997. The annual capacity of production of a Mill is determined keeping in view the factors i.e. 'd', 'n', 'w' and 'i'. The authority found that the factors 'n' and 'i' could not be checked/verified as the mill was not in working order but the factor 'd' was found with variations and consequen....
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.... under Rule 96ZP when the same had not been invoked in the show cause notice. (v) Whether the Tribunal was correct in not giving the benefit of reduced penalty as per proviso to Section 11AC when the penalty was imposed initially under Section 11AC more so when there has been no intentional act to evade payment of appropriate duty. 6. We have heard learned counsel for the parties and is of the opinion that even the said two questions do not arise for decision. Firstly we shall discuss the question No. (iv). 7. No doubt that the show cause notices served upon the petitioner gives reference to Section 11AC of the Act but the penalty has been imposed under Rule 96ZP. It is well settled the mentioning of wro....
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....the appellant was that due to repair carried out by semi-skilled workers, the 'd' factor has changed leading to increased production capacity. But the report of the technical experts was relied upon to assert that it is normal wear and tear of the machinery which led to variations in 'd' factor. The Tribunal found that 'd' factor is 258 which fact was accepted by the representatives of the appellant. The Tribunal also found that the variations between 258 and 261 were due to wear and tear. After returning such finding the Tribunal upheld the aforesaid penalty. 10. We do not find any merit in the argument that the variation in 'd' factor from 245 declared by the appellant and 258 determined by the Tribunal was due to normal wear and te....
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....he appellants that they have not given any such intimation to the Commissioner. The plea was change of 'd' factor from 245 to 258 was due to wear and tear of bushes seems to be an after-thought. Having admitted that semi-skilled workers have changed the parameters, a contrary claim that the entire variation was due to change in dimensions of the bushes due to wear and tear is not acceptable. Perhaps, the technical opinions given by experts explain the difference between 261 as determined by the officers on 21-8-1999 and 258 as recommended by them. This small variation between 258 and 261, perhaps, was due to wear and tear. At any rate, the appellants are not disputing the 'd' factor as 258. Therefore, in the absence of fulfilling the mandat....