TMI Blog2015 (9) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... uch circumstances, the contention of the Appellants that there was no question of re-examining the said issue cannot be accepted on reading the said Order dated 19.07.2004 Appellant had failed to note that closing balance was 24.16 MTs. Taking note of the said closing balance which has not at all been considered by the Adjudicating Authority whilst holding that there was clandestine removal of 14.54 MTs, we find that the conclusion arrived at by the Tribunal cannot be faulted. The fact that the figures on the balance sheet have to be accepted has not been disputed by the Appellant. In fact the Tribunal has noted that there is no material on record produced by the Appellant to dispute the correctness of the figures shown on the balance sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Show Cause Notice or mere direction to compute and communicate to the respondent, Central Excise duty payable on Viscose Yarn and other amount in terms of the said Order ? (3) Whether the CESTAT was justified in setting aside the Order dated 24.3.2006 passed by the Commissioner in view of the facts and circumstances as set out in this appeal ? 3. Briefly, the facts of the case as stated by the Petitioner are that the Factory premises of the Respondent Company M/s. Seagull Threads (I) Ltd. was visited by the Central Excise (Preventive and Intelligence) Unit of the Appellants Office. Records and materials were seized under Panchanama somewhere around 13.08.1996 and 16.08.1996. After due investigation, the Respondent was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by suppressing figures of production and sale and, consequently, confirmed the demand of ₹ 40,18,686/- as basic excise duty and ₹ 6,02,803/- as additional duty of Excise and also imposed penalty of equivalent amount under Section 11AC of the Central Excise Act, 1944, whereby, the Polyester sewing thread totally valued at ₹ 19,690.29 was ordered to be confiscated which was allowed to be redeemed with a fine of ₹ 5,000/- in lieu of confiscation. Learned Counsel further pointed out that being aggrieved by the said Order, the Respondents filed an Appeal before the Customs, Excise Service Tax Appellate Tribunal (CESTAT), which Appeal was allowed in part and, consequently, the demand of duty for Polyester Yarn was set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants and ultimately by impugned Order dated 24.07.2007, the Appeal was allowed and the Order dated 24.03.2006 passed by the Commissioner, came to be set aside. Learned Counsel further pointed out that the Tribunal has erroneously appreciated the evidence on record and has failed to consider that there was a shortfall which was established by the Appellants which made the Respondents liable to pay excise duty claimed along with penalty and interest. Learned Counsel further submitted that as the original Order was accepted by the Respondent, the question of now disputing the correctness of the earlier findings by the Commissioner is totally erroneous. Learned Counsel has also taken us through the Order passed by the CESTAT and pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 6. We have considered the submissions of the learned Counsel. We have also gone through the records. On perusal of the Order passed by the CESTAT, we find that the Tribunal has found that there were two aspects to be considered on the basis of the contention of the Appellants and the Respondents. First is the scope of the remand Order of the Tribunal and the next is as to whether the claim of duty penalty and interest is justified. The Tribunal has rightly noted that on perusal of the Order of the remand, it clearly says that the demand thereof is to be re-visited on the basis of total Viscose Yarn manufactured by the Respondent during the year in question. The Tribunal, as such, found that the show cause notice issued to the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of duty for both Polyester Yarn and Viscose Yarn had not indicated the duty separately on each of these products and, as such, as no duty was payable with regard to the Polyester Yarn, the demand with regard to the Viscose Yarn had to be re-visited on the basis of goods manufactured by the Respondent during the period in question. The said Order clearly shows that the claim of duty with regard to Viscose Yarn was ordered to be re-examined by the authorities. In such circumstances, the contention of the Appellants that there was no question of re-examining the said issue cannot be accepted on reading the said Order dated 19.07.2004. Hence, the first and second substantial questions of law are answered against the Appellant. 8. With ..... X X X X Extracts X X X X X X X X Extracts X X X X
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