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2016 (9) TMI 179 - AT - Central ExciseDemand alongwith interest and penalty for the month of September, 1997 - duty liabiliy calculated on proportionate production capacity in respect of two furnaces - appellant contended that although they had two furnaces in their factory but only one was running in condition, and/or use - Held that:- it is an admitted fact that the appellant had intimated by their option letter that they will be operating only one furnace and it appears that Revenue failed to seal the other furnace. Accordingly, in absence of evidence that the appellant operated both their furnaces for the month of September, 1997, the demand for the two furnaces together have been raised on assumption and presumption, which is not tenable. Hence, the appellant is liable to pay duty on the basis of production capacity only for one furnace for the month of September, 1997, or ₹ 7.5 lakhs. The appellant will be liable to pay only the balance demand, after adjustment of the amount of ₹ 3,20,000/- and ₹ 2,11,857/- and any other payment if made. We further hold that in view of the Law clarified by the Hon'ble Supreme Court in the case of Shree Bhagwati Steel Rolling Mills and others Vs. Commissioner of Central Excise [2015 (11) TMI 1172 - SUPREME COURT], the appellant is not liable to pay any interest and penalty. - Decided partly in favour of appellant
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