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TMI Blog2016 (9) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... by confirming the demand under Rule-57 I (2) of the Central Rules 1944 alongwith interest. 2. Sh. S. C. Mohanty (Advocate) appearing on behalf of the appellant argued that department found a shortage of 1202.187 MT of Alumina as per the stock verification report dt 25/10/95, for the period ending 1995, prepared by appellants internal Auditors. That credit taken with respect to 1202.187 MT of Alumina was estimated and show cause notice dt 28/9/2000 was issued by the Adjudicating authority, by invoking extruded period demanding duty & proposing imposition of penalty. That on the same amount & on the same issue a show cause notice dt 23/9/97 was issued by AC, CE, Cuttack. It was his case that the earlier show cause notice dt 23/9/97 has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived in the relevant financial year was noticed. This aspect has been certified & explained by PAMS & Associates (Chartered Accountants) in their certificate dt 5/1/2016. A copy of the same was furnished by the Learned Advocate on 8/1/2016 to the bench. That appellant is a Public Sector under taking (PSU) under the Ministry of Mines Govt. of India and can not be expected to have clandestinely cleared the duty paid inputs when no seizure of such inputs outside appellant s factory has been made by the department. 3. Sh. S. S. Chattopadhyay Suptd (AR) appearing on behalf of the Revenue made the following arguments. (i) That on the issue of two show cause notices Adjudicating authority has appropriately discussed the matter in Para 1.0 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rule 57 I (2) and proposing penalty under Rule 173 Q of the Central Excise Rules 1944. The same cause is existing in show cause notice dt 28/9/2000, except for the difference that later show cause notice was as a result of one investigation conducted by Central Preventive Unit of HQ. There is no indication that some glaring additional documents were recovered by the department, which were not available while issuing the first show cause notice dt 23/9/97, requiring issuing of a second show cause notice by invoking extended period. It is now a well accepted legal proposition that a second show cause notice on the same issue can not be issued when no additional evidence has been recovered by the investigating agency. 5.1 However, Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing midyear stock taking. It is also appellant s case that mid year stock taking is done when appellant s smelting plant is being continuously run and dip measurement taken during such continuous run could be defective. It is observed that this aspect has been highlighted by the appellant before the Adjudicating authority as per Para 3 of their reply date 5/2/2001 to the second show cause notice & reply dt 23/3/1997 to the first show cause notice dated 23/9/1997. Appellant on 8/1/2016 filed before this bench a chartered Accountant s certificate dt 5/1/2016, alongwith Annual Report of NALCO for the year 1995-96 and other documents, to argue that mid year stock taking done by their auditors is not of much relevance as during the year end reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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