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2016 (4) TMI 321 - CESTAT KOLKATA

2016 (4) TMI 321 - CESTAT KOLKATA - TMI - Payment of interest of deposit - Section 11BB of the Central Excise Act, 1944 - Short payment on certain goods due to clandestine removal of finished goods - Same admitted, paid and included in total refund amount for month of August, 2009 under Notification No.32/99-CE dated 08.07.1999 - Revenue contended no appeal has been filed by the respondent against the order of clendestine removal of goods of adjudicating authority and also the interest on deposi .....

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vations made by the Apex Court in the case of Tractors and Farm Equipment Limited vs. Collector of Customs, Madras [1997 (2) TMI 111 - SUPREME COURT OF INDIA], 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 went beyond the scope of .....

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ted 22.02.2013 passed by the Commissioner of Customs & Central Excise, (Appeals), Guwahati. Under this Order-in-Appeal dated 22.02.2013 the First Appellate Authority has set aside the Order-in-Original dated 30.11.2010 passed by the Adjudicating 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 .....

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er No.278/ACG/2010 dated 17.01.2010. Ld. A.R. made the bench go through paragraphs 2 and 6 of the Order-in-Original dated 17.01.2010 to argue that the said amount of ₹ 1,50,199/- was rejected by the Adjudicating Authority against which no appeal has been filed. That once the Respondent has accepted the duty liability of ₹ 1,50,199/- on clandestine removal of goods, then the same respondent cannot take a different stand before the Appellate Authority under a parallel proceedings on th .....

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aring. It is also observed from the case records that on earlier occasion on 07.01.2016 also none appeared on behalf of the Respondent. There is also no request for adjournment and the notice of hearing to the Respondent has not been returned undelivered. 4. Heard Ld. A.R and perused the case records. During audit of the Central Excise records of the Respondent, it was observed that 6078.460 kgs of Laminated Film were cleared without payment of duty. The Respondent accepted the duty liability an .....

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spect 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 the present management took over the factory on 21.11.2008 and the earlier staff looking after the accounts left the Respondent. It was thus argued before the Lower Authority that there was no clandestine removal of goods and confir .....

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FF of the Central Excise Act, 1944 in the year 2014. 5. Heard Ld. A.R and perused the case records. During the course of audit it was detected by the department that Appellant has short paid ₹ 1,50,199/- on certain goods due to clandestine removal of finished goods. The same was admitted by the Respondent and paid in August, 2009. The same amount was included in a total refund of ₹ 3,56,516/- filed by the Respondent for the month of August, 2009 under Notification No.32/99-CE dated 0 .....

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