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TMI Blog2016 (4) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority regarding duty confirmed on clandestine removal of goods and equivalent penalty imposed under section 11 AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002. The First Appellate Authority has also directed the department to refund the amount of Rs. 1,82,971/- paid by the Respondent as a result of audit alongwith interest under section 11BB of the Central Excise Act, 1944. 2. Sri S.S.Chatterjee, Suptd.(A.R) appearing on behalf of the Revenue argued that while granting stay to the department, this bench under Order No.SO/71280/2013 dated 15.10.2013 had made an observation that refund claim of Rs. 1,50,199/- earlier filed by the Respondent was rejected by the Adjudicating Authority under Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the amount on 26.08.2009 along with interest. Subsequently the amount of Rs. 1,50,199/- paid in the month of August, 2009 was included in the refund claim filed by the Respondent under notification No.32/99-CE dated 08.07.1999. The said amount of Rs. 1,50,199/- was rejected by the Adjudicating Authority under Order-in-Original No.278/ACG/2010 dated 17.01.2010. It has been observed by the Adjudicating Authority in paragraph-6 of this order that refund of Rs. 1,50,199 is with respect to duty voluntarily paid by the Respondent in clandestine removal case. Subsequently a show cause notice dated 19.05.2010 was issued to the Respondent regarding clandestine removal of the goods. In reply to the show cause notice it was argued nu party that that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent, then it has to be interpreted that they have accepted the clandestine removal of the goods. Having accepted the fact, Respondent could not have raised the plea before the Lower Authorities that there was no clandestine removal of the goods. In this regard the observations made by the Apex Court in the case of Tractors and Farm Equipment Limited vs. Collector of Customs, Madras (supra) are very relevant that a stand taken by an assessee during the earlier proceedings cannot be altered by that assessee subsequently. On the similar facts, the ratio laid down by the Apex Court is clearly applicable to the present proceedings. While allowing the Appeal of the Respondent the First Appellate Authority also went beyond the scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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