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TMI Blog2022 (12) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... tent with the specific aspect highlighted in the order of remand requiring ascertainment of the claim of the appellant that the machines were, in fact, non-functional. This the lower authorities have failed to do. As the order of remand has not been complied with, it would be only fit and proper for the impugned order to be set-aside. Appeal allowed. - EXCISE APPEAL NO: 769 OF 2012 - FINAL ORDER NO: A / 86205 /2022 - Dated:- 14-12-2022 - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri Rajesh Ostwal, Advocate for the appellant Shri Sanjay Hasija, Superintendent (AR) for the respondent ORDER This appeal of Mr SC Vankudre, proprietor of M/s Subash Industries, against order-in-appeal no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original authority with the finding that 10. It is interesting to observe that the appellant got machine No.1 and installed but procured the other two machines reportedly as standby but never installed and used since it's acquisition in the year 1974 to 1975. It is uncommon and strange for a prudent businessman to purchase three machines but using only one machine and never even installed the other two machines for more than 20.years. If it is purchased as standby not one but two machines, there is no satisfactory explanation or reasoning as to why the said two machines reportedly purchased for use as standby, have never been installed or used. In the Statement Mr. Subhash stated that it is his experience that breakdown takes pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al facts do not support the plea of the appellant that two machines were not installed or used in the manufacture of the final product and thereby conclude that the appellant is liable to pay excise duty under the Compounded Levy Scheme taking the number of cold rolling machines installed in the factory premises as three by applying the rate of duty of Rs.7,500/- per month per machine. The duty is liable to be discharged accordingly. Since this is the case of evasion of duty by suppression of material facts and mis-declaration, there is no merit to consider the plea to waive the penalty imposed. in response to the plea of the appellant that two of the machines remained idle at any given point in time. 5. The terms of remand are unar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the manufacture of the final product. Hence this contention of the appellants requires reconsideration by the learned Commissioner (Appeals) as held by the Hon ble Member (Technical) . 6. The findings of the first appellate authority appears to be rhetorical with intent to eliminate improbability coupled with mere restatement of observation of the Tribunal for adoption of conclusion that is vague. That is not consistent with the specific aspect highlighted in the order of remand requiring ascertainment of the claim of the appellant that the machines were, in fact, non-functional. This the lower authorities have failed to do. 7. As the order of remand has not been complied with, it would be only fit and proper for the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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