TMI Blog2016 (9) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. Whether a Commissioner can decide show cause notice made answerable to Assistant Commissioner - Held that:- Rule 3 (3) of the Central Excise Rules 2002 allows a Senior Central Excise Officer to exercise the powers and discharge the duties conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reconciliation no shortage was found. Since the above Chartered Accountant certificate and other documents, were not produced before the Adjudicating Authority, therefore, the matter is required to be remanded to the Adjudicating authority to examine whether the mid year audit report done in Oct 1995 can still be relied upon in the light of documents now furnished by the appellant. However, it is observed that appellant being a Public Sector undertaking and has a reasonable explanation for the alleged shortages, can not be fastened with the penal liability. Accordingly penalty imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is time barred. It was also his case that show cause notice dt 23/09/97 issued by AC cannot be adjudicated by the Commissioner. 2.1 On merits Learned Advocate made the bench to through certain photographs explaining how duty paid powdered Alumina is brought in by specially designed railway tank wagons (called BTAP wagons) in rake load and how the same is fed into various silos at appellant s Angul Siding, inside the smelter plant through pneumatic pressure. That there are four primary silos and 20 secondary silos where Alumina is contained at any time of the processing. That for each primary silo five different points are ultimately used in calculating the quantity of Alumina during stock verification. That midyear stock taking done by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a senior officer can take up the adjudication work of his junior officer. (ii) Learned AR made the bench go through Pares 2, 3, 4 of the OIO dt 20/12/2001 to argue that appellant s explanation on variation of dip reading was considered appropriately by the adjudicating authority. (iii) That the case law NALCO Vs CCE Bhubaneswar-I [2003 (159) ELT 370 (Tri-Kolkata)] in the appellant s own case is squarely applicable to the present facts, which was relied upon by this bench while passing order dt 29/3/16, which was recalled by order dt 8/7/2016. 4. Heard both sides perused the case records. Following issues are required to be deliberated in these proceeding. (i) Whether two show cause notices on the same issue, proposing same c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the show cause notices for adjudication and it is held that confirmation proceedings are done by the Adjudicating authority with respect to first show cause notice dt 23/9/97 subsequent show cause notice dt 28/9/2000 does not survivor. It is also held that show cause notice dt 23/9/97 survives is not time barred. 6. With respect to second issue at Para 4 (ii) above it is observed that Rule 3 (3) of the Central Excise Rules 2002 allows a Senior Central Excise Officer to exercise the powers and discharge the duties conferred on any Central Excise Officer subordinate to him. This power was earlier available under Rule 6 of the Central Excise Rules 1944. Otherwise also appellant should not have any objection if their dispute is settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned AR on the case law NALCO Vs CCE Bhubaneswar I (Supra) may not applicable to the existing facts as brought out and argued now by the Advocate during the course of hearing. It is observed that shortages in the relied upon case were based on final annual reports of 1992-93 1994-95 and not based on ad-hoc mid year stock taking shortages noticed. The details of year end stock taking is elaborately discussed by this bench in Para -7 of the above relied upon case law where appellant s C/A M/s R. K. Das Associates was also the same. 7.2 Since the above Chartered Accountant certificate dt 5/1/2016 and other documents (Total-46 pages), were not produced before the Adjudicating Authority, therefore, the matter is required to be remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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