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2023 (7) TMI 820 - CESTAT KOLKATAClandestine removal - excess production as against the annual capacity of production - clearance of excess production without payment of duty - demand of interest and penalty - HELD THAT:- The ld. Commissioner (Appeals) in his impugned order has observed that Since the said assesse were operating under Section 3A, actual quantity of production and removal is immaterial, and the assessee has to discharge duty liability fixed by the competent authority on the basis to the ACP determined as peer ACP rules, 1997. In the instant case, monthly duty liability fixed by the competent authority has not been set aside by the higher authority or y the higher forum, and such fixation of ACP, as well as duty liability, cannot be put into question, and I cannot sit on judgment over such issue settled by the then jurisdictional Commissioner, statutorily competent authority in this regard. It is further noted that nowhere the revenue has come forward with an evidence that how the alleged excess production took place and the show-cause notice has been issued without cogent evidence to bring on record the annual capacity of production was not fixed properly. The allegations in the show-cause notice are not sustainable - there are no merit in the appeal filed by the Revenue and the same is dismissed.
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