TMI Blog2017 (2) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation under section 11A of the Central Excise Act, 1944 would not be applicable under Rule 223A of the erstwhile Central Excise Rules, 1944 - matter is remanded to the Commissioner (Appeals) to decide on merits after observing the principles of natural justice - appeal allowed by way of remand. - E/93/2009 - FO/A/75069/17 - Dated:- 31-1-2017 - Shri P. K. Choudhary, Member (Judicial) Shri J.Bose, AC(AR) for the Appellant Shri T.Chakraborty, Advocate for the Respondent ORDER Per: Shri P. K. Choudhary 1. Revenue is in appeal against the impugned order wherein the lower appellate authority has observed that the show cause notice was issued by the Range Superintendent after normal prescribed period of six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sustainable. Ld. Advocate cited the decision of the Tribunal in their own case in M/s. Steel Authority of India v. CCE, Bhubaneswar reported in 2001 (47) RLT 343 (Tribunal), wherein it was held that difference in figures of manufacture and clearance between the annual financial accounts and RG-1 cannot form the basis for demand of duty, when there is nothing on record to show that the respondents have indulged in clandestine clearance without payment of duty. It was further pointed out that demand is also hit by time bar, as Section 11A is clearly applicable for short-levied duty even arising from for stock challenge or stock taking under Rule 223A of the Central Excise Act. There is no allegation of suppression of facts, fraud, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... norm of 1%. The shortage in stock of saleable materials occur due to reasons i.e. sectional weight variation, transport, handling, difference in the physical and theoretical weight. Ld Advocate further submits that production of the materials is recorded on the basis of a yield percentile. In this method of calculation, there is bound to be certain variation and in fact, variation is inherent in this method. The ratio of yield percentile is by very nature cannot be constant, fixed, invariable, mathematically precise one. 4. It is case of the respondent assessee that the difference between the quantity of physical stock and RG-1 is attributable to the fact that these quantities are arrived at on the basis of estimation and not actual weig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 11A of the Central Excise Act, 1944 would not be applicable under Rule 223A of the erstwhile Central Excise Rules, 1944. Hence, the finding of the Commissioner (Appeals) cannot be sustained in the eye of law. However, I find that the Commissioner (Appeals) had not decided the matter on merits. It is appropriate that the matter should be remanded to the Commissioner (Appeals) to decide on merits. 8. In view of the above discussions, the impugned order of the Commissioner (Appeals) on limitation is set aside. It is held that the period of limitation under section 11A of the Central Excise Act, 1944 would not be applicable to a situation as contemplated under Rule 223A of the erstwhile Rules 1944. The matter is remanded to the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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