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2014 (4) TMI 97 - AT - Central ExciseDuty demand - Clandestine removal of goods - removal of fresh fans in the guise of repaired one - Whether the fans which were purportedly cleared by the Applicant Firm as a repaired/re-conditioned one, show any correlation with the defective fans received at the service centre or not, and whether the conditions of Rule 16 in the event of repairing/re-conditioning are satisfied in this case or not - Held that:- Applicants plea that the defective fans received at the service centre, were duly reflected in their record and the movement of component spares etc. to the factory, after dismantling of the defective fans took place under proper challans, need further examination. According to the Applicant, the fact they were eligible to credit, is also not discussed by the ld. Commissioner. Regarding demand raised on shortage of bearings (in Annexure-C-4), the ld. Commissioner has not considered the fact that rejection is bound to take place during manufacture and the evidences adduced by the Applicant/Appellant before him, were discarded. The Applicant/Appellant has categorically stated that even the stock-taking report refers to rejection of the bearings and therefore, such rejection reflected in their books of accounts, should be considered before arriving at their shortage. In case of duty demanded (in Annexure-C-5) on spares shown to be removed under private challans, the ld. Advocate submitted that it was only a financial adjustment. The invoice-cum-challan clearly shows such short receipts to take care of financial accountal of such short receipts, the Applicant firm used to issue invoice-cum-challan specifying the components and their value for debiting from the accounts of the concerned branches. The ld. Commissioner observed that no audited certificate could be produced to this extent. It is the contention of the Appellant that they were never asked to give any such certificate. The ld. Advocate stated that all the documents including challans and invoices have been seized by the Department and they are in the possession of the Department and that they could explain satisfactorily from the said document that there were no duty evasion on any counts. In view of the above facts, we find that Order of the ld. Commissioner has not considered in detail, all the issues raised by the Appellant. In these circumstances, we are of the view that the case may be remitted back to the ld. Adjudicating Commissioner for fresh decision, after considering all the issues raised by the Applicant/Appellant firm - Decided in favour of assessee.
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