TMI Blog2013 (4) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived and only documents were received by the appellant. Appellant has also brought on record to the effect that Tin ingots were consumed in their factory over a period of March 2005 to March 2006 and have not been consumed in a day, as held by Commissioner (Appeals). It is, therefore, held that cenvat credit with respect to Tin Ingots was rightly taken by the appellant and cannot be denied on the basis of presumptions and surmises. - Decided in favor of assessee. - E/121, 122 and 300 of 2011 - A/10466-10468/2013-WZB/AHD - Dated:- 9-4-2013 - Mr. H.K. Thakur, J. For the Appellant: Shri J.C. Patel, Advocate For the Respondent: Shri S.K. Mall, AR JUDGEMENT Per : Mr. H.K. Thakur; All the three appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot provided any evidence of using costly tin ingots in the manufacture of copper alloy. Secondly, findings was given by the Commissioner (Appeals) that 5 MT of tin ingots received, cannot be used by the manufacturer on the same day. Commissioner (Appeals) thus confirmed a demand of Rs. 8,67,589/- (Rs. 2,35,892/- + 6,31,742/-) out of a total demand of Rs. 27,71,173/- confirmed by the original adjudicating authority under OIO No. 01/OA/Adj./MSC-JC/09 dated 22.05.2009. Under order dated 19.10.2010, Commissioner (Appeals) also allowed the benefit of reduced penalty of 25% to the appellant No.1, under Section 11AC of the Central Excise Act, 1944, against which the Revenue (appellant No.3) has filed appeal. Penalty of Rs. 5,00,000/- imposed by or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the other hand, learned A.R. argued that order passed by Commissioner (Appeals) is correct to the extent of demand of duty and denial of cenvat credit. On the issue of giving benefit of 25% of reduced penalty under Section 11AC of the Central Excise Act, 1944, it was argued by appellant No. 3 that the option was not availed off by the assessee within the period prescribed under the law and accordingly, this benefit is not available. 6. After hearing both sides at length, it is observed that following two issues need deliberation in these appeals:- (a) Whether duty can be demanded from the appellant in appellate proceedings on an issue which was not the subject matter of the show cause notice or the adjudication proceedings before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e show cause notice to the appellant. Appellant has rightly relied upon the case of Hindustan Polymers Company Limited vs. CCE Guntur [1999 (106) ELT 12 (SC)] holding that a different basis of demand cannot be invoked against the appellant without putting him to notice. Relying upon the Hon'ble Supreme Court order in the case of Indian Aluminium Company Limited (supra), the Hon'ble High Court of Bombay in the case of Bhor Industries Limited vs. UOI [2011 (266) ELT 444 (Bom.)] made the following decision, held as follows as per Para 7 of this judgment:- 7. The law on the subject of powers of tribunal to do complete justice and mould the reliefs has been succinctly set out by the Supreme Court in Hindustan Polymers Co. ltd. v. C.C.E., 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has given his findings in Para 4.3.1 of order in appeal dated 19.10.2010. Appellant has relied upon the tariff description of the tariff sub-heading 7403.22 which pertains to Copper-tin base alloys to bring home the point that copper tin based alloys are traded for commercial purposes. Copies of some of the invoices of copper alloys ingots manufactured by appellant have been furnished which show the classification of the goods manufactured under tariff sub-heading 7403.22. The arguments raised by Commissioner (Appeals) in his order dated 19.10.2010 can at best create a suspicion on presumption but cannot take the place of evidence when appellant has brought on record that copper alloys of Tariff Sub-heading 7403.22 are manufactured by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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