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2019 (10) TMI 1216 - AT - Central ExciseClandestine Removal - it was alleged that appellants have diverted/misused/non-accounted for a quantity of 4,36,097 OTS cans during the period August 2001 to September 2005 - HELD THAT:- The investigation has clearly established that there was a non-accounted shortage/diversion of OTS cans and we find that the same has been accepted by Shri V.S. Purushotam Reddy, Accounts Officer of M/s PBPL and others. Therefore, there is no doubt regarding the duty liability on the OTS cans to be payable by M/s PBPL - the appellants other than making the averments in the submissions before the Commissioner and in the grounds of appeal have not produced any records evidencing the same. In the absence of the same, their submissions do not hold water and therefore, we are not inclined to accept the same. Invocation of section 11 of CEA - HELD THAT:- Section 11 pertains to recovery of sums due to the Government. That is to say, there should be a confirmed demand against the notice, on the date of invocation of the section, as on the day of notice. As on the date of transfer of unit from M/s PBPL to the appellants M/s JISL even the show cause notice was not issued. The show cause notice was issued on 31.10.2008 and was confirmed by Order-in-Appeal dt.27.07.2010 against M/s PBPL. Therefore, the issue of SCN to M/s JISL as on 31.10.2008 was premature as there was no confirmed demands as on that date. Even the SCN was not in existence. Therefore, the invocation of section 11 in show cause notice even before the demands are confirmed is not as per law. The invocation of section 11 at the stage of SCN is immature. A notice issued immaturely does not merit confirmation. Therefore, there is force in the contention of the appellants and the Order-in-Appeal is not sustainable, to the extent. Appeal allowed in part.
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