TMI Blog2011 (10) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs. 75 lacs before the Tribunal within a period of four weeks from today. - 81 of 2011 - - - Dated:- 12-10-2011 - Dr. D.Y. Chandrachud and A.A. Sayed, JJ. REPRESENTED BY :S/Shri V. Shridharan, Sr. Advocate with Prakash Shah and Jas Sanghavi, i/b PDS Legal, for the Appellant. Ms. S.I. Shah with Ms. Suchitra Kamble, for the Respondent. [Order]. P.C. : This appeal by the assessee is directed against an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dated 25 July 2011 on an application for waiver of pre-deposit under Section 35-F of the Central Excise Act 1944. The appeal is admitted on the following substantial questions : (a) Whether in the facts and circumstances of the case, the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 26 February 2004 determined the ACP of the Appellant at 25,600 MT. Based on the ACP for the year 1998-99 a demand for duty was raised in the amount of Rs. 1.92 Crores. By a separate order passed by the Commissioner on 27 February 2004 a demand for differential duty in the amount of Rs. 1.64 Crores together with interest and penalty was made on the assessee. The assessee had sought a redetermination of duty on the basis of actual production by a letter dated 3 August 1999 and submitted details showing that the production during 1998-99 was 3741.565 MT. This plea was rejected by the Commissioner on the ground that the assessee did not submit any evidence in support of its claim in regard to the actual production for 1998-99. 5. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, learned counsel submitted that - (i) The Appeal against the determination of the ACP was withdrawn since the assessee had no grievance in regard to that determination; (ii) Having regard to the provisions of Section 3A(4) this does not preclude the assessee from establishing that the actual production of notified goods in his factory is lower than the production determined under sub section (2) on the basis of the ACP; (iii) Appeals E/18 and 19/2005 arose out of the determination of the ACP under Section 3A(2) and the withdrawal of those appeals would not preclude the assessee from seeking a determination under sub-section (4) of Section 3A; (iv) The assessee has other arguable points on merits including the submission that the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four appeals (Appeal Nos. E/14, 15, 16 and 17/2005) should be remanded back on the ground that the adjudicating authority had not considered the fact that the factory of the assessee had remained closed for more than seven days for which an abatement of duty should be allowed. The remand was specifically sought for that purpose. The Tribunal accepted the plea and in the interests of justice remitted the proceedings back to the adjudicating authority. On remand, the assessee contended that the figures relating to its actual production during 1998-99 were available to the department through the statutory record maintained by the assesse and the returns which were submitted to the department. The Commissioner allowed the benefit of an abatemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eded to determine on the basis of inter alia the net demand of duty confirmed against the assessee by the Commissioner after allowing abatement of duty for the period of non-operation of the induction furnace. Moreover, the Tribunal deducted a further amount of Rs. 10 lacs from the amount to be pre-deposited by the assessee. 13. Counsel appearing on behalf of the assessee has submitted that the proceedings should be remanded back to the Tribunal for a fresh determination. We are not inclined to accede to this prayer at the present stage. Continuous remands by the High Court to the Tribunal, particularly at the interlocutory stage when issues of pre-deposit arise only add to the burden of litigation before the Tribunal and eventually resul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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