TaxTMI 
TaxTMI 
2019 (10) TMI 1216
X X X X Extracts X X X X
X X X X Extracts X X X X
....L), Chittoor. As both the appeals are emanated from the same Order-in-Original, the same are taken up for consideration together. 2. The brief facts of the case are that M/s PBPL are engaged in the manufacture and clearance of fruit pulp falling under Chapter sub-heading 2001.10 of Central Excise Tariff Act, 1985. The appellants procured "Open Top Sanitary Cans" (OTS cans) falling under Chapter 73.10 without payment of duty by availing exemption under Notification No. 43/2001-CE (NT) dt.26.06.2001 as amended from time to time read with provisions of Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001. On the basis of certain intelligence received, the premises of the appellants we....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... revenue. We find that the investigation has clearly established that there was a non-accounted shortage/diversion of OTS cans and we find that the same has been accepted by Shri V.S. Purushotam Reddy, Accounts Officer of M/s PBPL and others. Therefore, we have no doubt regarding the duty liability on the OTS cans to be payable by M/s PBPL. We find that learned Commissioner (Appeals) has given allowance to a number of cans available in the factory while computing the duty liability. We find that the appellants have taken a plea that all the cans have been used in the export goods directly or after receiving from job workers and there was wastage and home consumption of 73,836 OTS cans and the actual shortage comes to 42,515 OTS cans. Theref....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cause notice. 6. We find that for a better appreciation of the position of law a reading of section 11 of Central Excise Act, 1944 is necessary, which reads as follows: "Section 11. Recovery of sums due to Government. - In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder including the amount required to be paid to the credit of the Central Government under Section 11D, the officer empowered by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) to levy such duty or require the payment of such sums [may deduct or require any other Central Excise officer or a pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Customs, after obtaining written approval from the Principal Commissioner of Central Excise or Commissioner of Central Excise, for the purposes of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or otherwise disposal or change. (2) (i) The Central Excise Officer may, by a notice in writing, require any other person from whom money is due to such person, or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held, or at or within the time specified in the notice, not being before the money becomes due or is held, so much....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sued on 31.10.2008 and was confirmed by Order-in-Appeal dt.27.07.2010 against M/s PBPL. Therefore, we are of the opinion that the issue of show cause notice to M/s JISL as on 31.10.2008 was premature as there was no confirmed demands as on that date. Even the show cause notice was not in existence. Therefore, we find that the invocation of section 11 in show cause notice even before the demands are confirmed is not as per law. We find that learned Commissioner has found that the three conditions contemplated under section 11 of the Central Excise Act, 1944 are viz., a) the person from whom duty is recoverable/due, transfers or otherwise disposes or effects any change in ownership; b) of business or trade, either in whole o....