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2017 (2) TMI 1028 - AT - Central ExciseClandestine removal - suppression of production - The Commissioner while adjudicating the matter, has found that the appellant is not having the capacity to produce 50.89 crores of pouches with a short span time of 20 days. He held that only 30.06 crores of pouches could have been manufactured during the said period - Whether the Commissioner is correct in demanding duty on the basis of production capacity which is not alleged in the SCN? - Held that: - the impugned order lacks demanding duty on the basis of production capacity as the same is beyond the scope of show cause notice as held by the Hon'ble Apex Court in the case of Sun Pharmaceuticals [2015 (12) TMI 670 - SUPREME COURT], wherein it was held that the reasons given by the CESTAT in support of its view clearly reveals that CESTAT has gone beyond the show cause notice inasmuch as this was not even the case set up by the Department in the SCN - decided against Revenue. Whether the Commissioner is correct in demanding duty under the compounded levy scheme as per Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008 or not? - Held that: - As the Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008 were not in existence during the relevant time. Moreover, these rules have not been made effective retrospectively, in that circumstance, the duty cannot be demanded under Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008 - method of calculation of demand set aside. Whether the documents resumed from the residence of Sh. Manoj Rajouria can be relied upon to demand duty from M/s. Som? - Whether in the absence of any evidence on record except the documents record from the residence of Sh. Manoj Rajouria, the duty can be demanded or not? - Held that: - the department has clubbed together several railway receipts, sometimes of different dates to correspond with the quantity of Gutkha shown as transported in the resumed documents. It is not correct that there are several gutkha manufacturers in and around Delhi who transported their goods through railways but no efforts have been made to ascertain whether the gutkha has been sent by M/s. Som - Therefore, the duty cannot be demanded on the basis of the documents recovered from Shri Manoj Rajouria and the documents recovered from Shri Manoj Rajouria cannot be taken as evidence. Appeal allowed by way of remand.
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