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2018 (2) TMI 367 - AT - Central ExciseBenefit of N/N. 6/2002-CE dt. 1.3.2002 - allegation is that M/s.Visaka Industries Ltd. intentionally resorted to accounting of bogus / excess fly ash receipts in their registers with a motive to inflate the percentage of fly ash used in the final products to be 25% or above in order to avail exemption under N/N. 6/2002-CE dt. 1.3.2002 - case of the department is mainly based on the variation in the figures of fly ash allotted / lifted for M/s.Visaka Industries Ltd. as shown in the records of MTPS and that of the appellant. Held that: - The quantity shown to have allotted to appellant as per records of MTPS is much lower than that shown to have received in the records of appellant. The difference is quantified in Annexure-I and II of the SCN for respective periods 2002-03 and 2004-05. Accordingly, the bogus fly ash receipt accounted in excess by Vinayaka Industries for the year 2003-04 is 2251.311 MTs. The appellants have shown the use of 27.91% of fly ash in the various Forms and returns furnished to the department. According to department if the bogus receipts are deducted, the use of fly ash would be reduced to 24.54% for the year 2003-04. Similarly, the bogus fly ash receipt accounted in excess by Visaka Industries for the year 2004-05 is 7957.69. The appellants have shown use of 26.65% of fly ash for this year and when the alleged bogus fly ash receipt is deducted, the use of fly ash would be reduced by 16.27%, thereby the appellants would not be eligible for the benefit of N/N. 6/2002. Shri Santhosh Kumar, Proprietor of M/s.NEC has deposed that he is procuring fly ash from MTPS as well as from other sources and supplied to appellants. It is very much clear that the additional documents do not set up a new case or a new plea for the appellants. The matter requires to be remanded to the adjudicating authority who shall reconsider the whole issue after giving sufficient opportunity to the appellants to furnish documents and also reasonable opportunity of hearing - appeal allowed by way of remand.
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