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Control Engineering Company Versus Commissioner of Central Excise, Kol-III

2016 (4) TMI 542 - CESTAT KOLKATA

Recovery of incorrectly taken cenvat Credit - Shortages found in the stock of certain static converters - Non addition of 15% to the input value & making adjustment of the excess quantity of LG static converter found during stock - Held that:- Adjudicating authority while deciding the issue in remand proceeding, allowed appellants contention on 15% value addition & reduced the duty & penalty amount to ₹ 2,39,474/-. First appellate authority while deciding the issue further gave relief to t .....

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establish that excess quantity of the static converters was the same type where shortage was found. The stock taking was jointly done in the presence of Authorized representation & Sh. D.K. Dugar Prop. of the appellant on 23/3/2001, as is evident from the brief facts of demand cum- show cause notice dt 29/12/2008. Appellant now can not turn around and say that stock taking was defective or deficient. Therefore, in view of the above observations & settled proposition of law appeal filed by the a .....

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n behalf of the appellant argued that present appeal is as a result of remand proceedings ordered by this bench under order No. A-1236 / KOL / 2008 dt 11/12/08 in Appeal No. 51A/08. Learned consultant argued that demand is time barred as first appellate authority in the second last Para, on internal Page-4 of the OIA dt 7/6/2011, has dropped penalty proceedings. That the time barred aspect was also mentioned by this bench in order No. S-378/Kol/08 dt 21/5/08. 2.1 That adjustment of excess quanti .....

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ntry RG-23 (Port-I), & stock register. 3. Sh. A. Roy Supdt (AR) appearing on behalf of the Revenue made the bench go through Para-14 of the OIO No. 69/Denovo/DD-II/08-09 dt 23/3/09 to argue that LG make static converters are imported model wise. That the excess quantity of static converters was of different models than those static converters where shortage was found. That first appellate authority has given a specific finding on this aspect holding that for excess quantity appellant can tak .....

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08 (229) ELT 619 (Tri. Del.). 4. Heard both sides & perused the case records. The issue involved in the present case is recovery of incorrectly taken cenvat Credit on account of shortages found in the stock of certain static converters. During the course of earlier proceedings this matter was remanded to the original authority under order No. A-/236/Kol/2008 dt 11/12/2009. On the time bar issue this bench made following observations in Para-2 of order dt 11/12/2008.:- 2. Shri P.R. Das learne .....

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or the goods including the inputs, they have to pay the duty in respect of the same and it cannot be a valid ground that the demand has been issued after a time-gap 4.1 No appeal was filed by the appellant against the said observation made by this bench while remanding the case. Appellant has thus no locus stand now to agitate the issue of time bar nature of demand. Appellant argument on that accent stands answered in the earlier proceedings and has not been agitated by the appellant. 5. On the .....

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l provision in force and not adding 15% to the value of the inputs arbitrarily. Accordingly, for this limited purpose, the impugned order is set aside and the matter is remanded to the original authority for fresh decision. He shall allow the Appellants a reasonable opportunity of hearing before passing a fresh order. The learned Advocate, Shri Das undertakes not to ask for refund of the pre-deposited amount till the fresh order is passed. The appeal is thus allowed by way of remand. 5.1 Adjudic .....

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a- 14 of the OIO dt 23/3/2009 has clearly brought out that the type of converter, where quantity was excess, had different marks & numbers than the type of converters where shortage was found. This aspect has been clearly brought out by the first appellate authority also in the last Paragraph of his observations made on internal page 3 of the OIA dt 7/6/11. In the field of taking Cenvat Credit the onus is on the appellant to establish that excess quantity of the static converters was the sam .....

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