TMI Blog2004 (2) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... G.A. Brahma Deva, Member (J), (Oral)]. This is an appeal filed by M/s. Nandi Sahakari Sakkare Karkhane Niyamit, Bijapur, against the Order-in-Appeal No. 196/2003-C.E., dated 26-6-2003 passed by the Commissioner of Central Excise (Appeals) Mangalore. 2. Shri K.S. Ravi Shankar learned Advocate appeared for the appellants and Shri Narasimha Murthy learned JDR appeared for the Revenue. 3. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f HPCL v. CCE, Visak reported in 2002 (144) E.L.T. 555 (Tri. Bang.) and CCE v. West Coast Industrial Gases Ltd., reported in 2003 (155) E.L.T. 11 (S.C.). He also pleaded that the Commissioner (Appeals) in his order has upheld confirmation of demand of Rs. 94,149/- and imposition of penalty under Rule 57S(2)(c) of Central Excise Rules, 1944 on the ground that the scrap was generated out of Modvat a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old capital goods on which Modvat credit has been availed. Thus even though Rule 57S(2)(c) has not been invoked in the show-cause notice, mention of a wrong section for recovery of the duty does not vitiate the demand confirmed. 5. We have carefully considered the submissions made by both sides. We find that there is allegation that the appellants have cleared 89.70 Mts of MS scrap generated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants would not have got proper opportunity to defend the allegations. The show cause notice itself is defective and does not invoke the provisions of Rule 57S of the Central Excise Rules. These cannot be invoked by the Commissioner (Appeals) at the appellate stage. The lower authority has not invoked this Rule nor confirmed duty under this rule. Therefore the Commissioner (Appeals) s orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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