9911796707
TMI Blog2012 (11) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... ification Application seeking recall and modification of the previous order dated 8.4.2011 directing payment of Rs.6 Crores as pre- deposit, pending the appeal?" 2. The appellant was issued a show cause notice seeking to impose Central Excise duty in terms of Section-3A of the Central Excise Act, 1944. The appellant denied any liability; during the course of proceedings, statements of witnesses including its employees were recorded. By order dated 30.3.2009, the show cause notice was confirmed and among others, the demand for Rs. 8,30,53,761/- (Rs. Eight crore thirty lakh fifty three thousand seven hundred sixty one) of duty and penalty of the equal amount was imposed. The appellant carried the matter in appeal to the CESTAT (Tribunal for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee but also took note of other evidence which appeared on the record such as details of the sales made which were contained in a pen drive seized from the premises of one Ms. Janki Sharma, an employee of the assessee. It was submitted that the statement of the said Ms. Janki Sharma was recorded in which she had mentioned that the pen drive contained the details of sales made by the assessee through kachi parchi. It was also urged that during the course of the proceedings, the Commissioner noticed that the assessee had purchased an excessive quantity of diesel oil (to the tune of an amount in excess to Rs. 89 Lakhs) which only meant that there was substantial production which was withheld from the assessment. 5. This Court has conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HIVA" were sale by M/s. ATM only, as ATM was abbreviated form of M/s Ashutosh Metal. The above facts were also corroborated by the statements of Shri R.S. Aggarwal and Shri Manish Sethi, who prepared such kachhi parchies at different times on directions of Shri Jatinder Kumar Aggarwal. 41.1 Shri Jatinder Kumar Aggarwal (Proprietor of M/s. ATM), however, in his statement denied the above facts. He states that M/s Ashutosh Metal has got no connection with ATM and Shiva account generated from the pen drive; they do not prepare any kachhi parchi and the kachhi parchies recovered from Smt. Janki Sharma has got nothing to do with him; Smt. Janki Sharma never worked with Ashutosh Metal and he has never given her any kachhi parchi for data feeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures of the assessee. At the same time, the Commissioner was also alive to the fact that the production capacity of the Unit was 75 MT per month which would have worked out to maximum of 600 MT. In the eventuality, the duty liability would have been in the range of Rs. 74-75 Lakhs. Then there is absolutely no discussion on this aspect in the Order in Original. Though this appears to have been urged before the Tribunal, the latter did not give sufficient weightage to this aspect and appears to have adopted a rough and ready rule while directing pre-deposit of Rs. 6 Crores which it refused to alter when the rectification application was made. This Court has also considered the rectification application which specifically states in paragraph-5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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