TMI Blog2000 (8) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... ve in extenso. They also agreed to have the appeal heard and disposed of. Accordingly we perused the documents, heard the learned Counsel and the learned D.R. We are disposing of the appeal itself. 2.Appeal is directed against Order-in-Original No. 27/94 dated 28-4-1999 passed by the Collector of Central Excise, Bombay-III. As per this order a liability of Rs. 1,33,02,518 has been imposed on the appellant in relation to Polyethylene Barrels manufactured during the period from 1987 to 1991. Out of that, Rs. 1,03,09,087 as Modvat credit is stated to have been wrongly availed in violation of the provisions contained in the rules. A penalty of Rs. 25 Lacs has also been imposed on the appellant invoking the provisions contained in 173Q of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod was assessed. That was found to be in excess of the actual number cleared by the appellant. The difference was taken to be barrels manufactured and clandestinely removed. It was in relation to this clandestine removal, according to the Learned Counsel, duty demand of Rs. 29,01,607 was levied. This forms part of the total demand of Rs. 1,33,02,518 confirmed in the order impugned. 5.The above procedure adopted by the Department in dividing the entire stock of raw material by 9.2 Kg. to find out the total number of barrels manufactured is under serious attack. Appellant was not only having its Plant in Talasari but also was having another Plant at Patalganga. The weight of barrel manufactured at that Plant was not taken into considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entries made in RG 23 and relied on the entries made in private records. According to the Collector appellant got only that much raw material seen in the private records and not the entire quantity mentioned in the RG 23 register. So, Modvat credit in relation to the excess quantity entered in the RG 23 register was denied. This accounts for the claim of Rs. 40.59 Lacs. If the quantity of raw material that was recorded in the private registers alone are reckoned as raw material received by the appellants in the factory, Learned Counsel proceeds to argue that total number of barrels found by the Collector as having been manufactured could not have been so manufactured. On this basis, it is contended that the claim of duty on the finished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we set aside the order of the Collector impugned in this appeal and remit the matter back to the jurisdictional authority to re-adjudicate the matter afresh in the light of the observations made earlier in this order. Adjudicating authority must return documents which are not sought to be relied on by him in these proceedings. In relation to the documents which are being relied upon, readable copies should be furnished to the appellant. 10.Before denying Modvat credit on the ground of failure of the appellant to furnish valid copes evidencing payment of duty, the law laid down by this Tribunal in the decision referred to above should be taken into consideration. Learned Counsel further submitted that the appellants are in possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 10 lakhs would be paid on or before 15th May, 1996, the second instalment would be paid on or before 15th June, 1996 and the third instalment would be paid on or before 15th July, 1996. For the balance sum of approximately Rs. 60 lakhs the petitioner undertakes not to create any charge on its unsecured assets to the extent of Rs. 60 lakhs. The appeal would be heard on merits in due course after the petitioner has deposited the aforesaid amount." Order passed by the High Court has been complied with. Appellants deposited money and furnished bank guarantee. This means that Rs. 73 Lakhs have been received by the Department as pre-condition for hearing the appeal, as contemplated by Section 35F of the Act. When the impugned order is set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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