TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 1072
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....lants need to be taken up for disposal. 4. Heard both sides on the miscellaneous application. 5. Ld.Counsel appearing on behalf of the assessee appellants submit that the grounds which are taken in the miscellaneous applications were not urged in the appeals filed by the assessee and the individuals by oversight. It is his submission that these grounds were taken before the adjudicating authority as well as the first appellate authority and they are not in the nature of new grounds or new pleas, but they are the submissions made before the lower authorities and due to oversight, were not taken up in these appeals. 6. Ld.Departmental Representative, on the other hand, submits that these are all question of facts which should not be considered at this juncture. 7. After giving careful consideration to the submissions made by both sides and on perusal of the records, I find that the pleadings which are taken in the miscellaneous applications go to the root of the matter that needs to be decided by me in these cases. I also find that the appellants had been agitating this point before the lower authorities. Hence, I allow the applications for urging the grounds which were not taken....
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....s closing stock in the stock register maintained by the appellant. It is his submission that the stock checking was done in a haphazard manner, overlooking various stock lying in process at various departments of the appellant's factory. It is his submission that the judgment of the Tribunal in the case of Hira Steels Ltd - 2006 (206) ELT 783 is a guiding factor and stock checking being defective, demands are not sustainable. It is also his submission that though there is an allegation of shortage, no further investigation has been conducted by the Department for establishing clandestine clearances such as no statements of buyers, movement of money as private record were recovered. It is his submission that the ratio of the decision of the Tribunal in the case of M/s Suzler Processors Ltd - 2013 (293) ELT 258 would be applicable in this case as in that case, the Tribunal, in similar facts & circumstances, has held that when there is application for fixing of annual capacity to discharge duty under compounded levy scheme was pending, the demand of shortages was unacceptable and dropped by the Tribunal. He would submit that the appellant had also filed an application for discharge of....
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....ade by him on 11.05.2001 and had relied upon various documents to show that they have discharged the duty liability as per the ascertained production capacity. (c) As regards the demand of Rs. 80,663/-, the said demand is based upon the un-reliable private record and statements of co-accused. It is his submission that the Department has not adduced any tangible or concrete evidence to establish a case of clandestine removal. It is his submission that in any case, it is a settled law that statement of co-accused cannot be blindly relied upon to confirm a demand under the serious charge of clandestine removal. 10. It is his submission that the impugned order be set aside and appeals be allowed. 11. Ld.Departmental Representative, on the other hand, would draw my attention to the Order-in-Original and Order-in-Appeal. It is his submission that the appellant has not made out any case as the shortage which was detected during stock verification is un-contested in as much as the stock have been verified in front of Panchas and the Directors of the appellant company and not before any junior officers of the company. It is his submission that n....
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....ourt, but withdrawn by the appellant. It is his submission that as per Rule 96ZZA(ii) of Central Excise Rules, 1944, a manufacturer makes his application to pay the provisional duty as per compounded levy scheme, however, of application is dismissed, then duty will have to be paid on ad-valerom basis and such duty is to be adjusted with the duty already paid provisionally, are the provisions which will apply in this case. It is his submission that the appellant's claim as to the duty was paid under compounded levy in the month of June 2001, is also incorrect as the invoices submitted by the appellant vide letter dt.17.08.2006 before the adjudicating authority also are incorrect as they had themselves during the month of May and June, paid the duty under ad valerom basis. It is his submission that the worksheet prepared on the basis of folding book indicate that the folding of the fabric was done in the month of May 2001, hence the duty liability would arise as during the relevant period, the appellant was not operating under compounded levy scheme. It is his submission that the plea of the appellant that the goods were actually removed under the cover of invoice, is also incorrect ....
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....d in the worksheet and considered as illicitly removed, was, in fact, removed by the appellant under invoice dt.07.05.2001, 08.05.2001, under ARE4s on payment of duty. The worksheets prepared by the appellant gives clear details as to the invoice number and the amount of duty liability discharged against the lot numbers which were alleged to have been removed clandestinely. I also find that there are various entries in the worksheet attached to the show cause notice which are either overlapping or appearing twice in the said worksheet. Secondly, I do find that there is no denial of the fact that the main appellant had filed an application on 18.05.2001 to operate under compounded levy scheme with CCE Ahmedabad. The said application on the date of visit was not rejected by the authorities and after visit of the authorities in the factory premises of the appellant, appellant having not received any rejection letter, continued to clear the goods manufactured by them under the compounded levy scheme. It is noticed from the records that the appellant had prepared invoices during the period, clearly indicating therein that they are operating under compounded levy scheme as per the provi....
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....ed in the present appeal is as to whether the non-maintenance of record by the appellant during the intervening period of filing the application and rejection of the same by the Commissioner, which resulted in shortages of grey fabrics and final product would call for confirmation of duty of Rs. 3,00,020/-. As per the appellant during the said period, they discharged their duty liability under compounded levy scheme, which does not take into consideration each and every clearances and duty is required to be paid on the lump sum basis. There is nothing on record to show that the goods found short were not included in the goods cleared under compounded levy scheme, on which the duty already stand discharged on monthly basis. It is also noticed that the appellants prayers for working under the compounded levy scheme was rejected only in October, 2001. As such in August, 2001, when their factory was visited by the officers, they were working under the compounded levy scheme and were discharging their duty liability accordingly. It is not the Revenues case that such shortages were not part and parcel of the clearances effected under compounded levy scheme on which duty already stand pa....