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2017 (5) TMI 940 - CESTAT MUMBAI

2017 (5) TMI 940 - CESTAT MUMBAI - TMI - Clandestine removal - demand - Held that: - the first appellate authority has failed to consider the fact that the respondent has not paid the amount of duty calculated on the basis of electricity consumption as per report of Prof Batra, IIT, Kanpur and the first appellate authority has not come to a definite conclusion on the basis of evidence produced by the appellant with the case of meritable proceedings - demand needs to be set aside - appeal rejecte .....

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eals for disposal in the absence of any representation from the respondent. 4. Learned D.R. reiterates the Grounds of Appeal. 5. On perusal of records I find that the first appellate authority has set aside the order-in-original vide which there was confirmed demand with interest and appropriation of an amount against the confirmed demand and penalties as well imposed on the main respondent and 2 other respondents. It is noticed from the records that a show-cause notice dated 05.03.2009 was issu .....

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h the appeal files and the documents available on records. From the records, I find that the appeal has been filed by main notice i.e. appellant No.1 and by all the co-noticee i.e. appellant no.2 & 3 against order-in-original No.32/CEX/JC/2010 dated 25.03.2010 passed by the respondent. The crucial point raised by the appellant no.1 is that a show-cause notice under F.No. Prev/VII/Gr.III/Adinath/39/2008 dated 15.05.2008 was issued to the appellant no.1 demanding duty for the period April - 20 .....

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sued for the period January 2008 and February 2008 which is already covered in the show-cause notice dated 15.05.2008. I find that this plea of multiple proceedings for same period needs certain attention. Commissioner of Central Excise and Customs, Aurangabad issued demand dated 15.05.2008 on basis of average electricity consumption during the period under dispute. It means the total possible quantity that appellant no.1 would have manufactured during the said period was covered by way of theor .....

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ed quantity mentioned in the show-cause notice dated 05.03.2009 was other than the quantity already covered by the show-cause notice dated 15.05.2008 duty on which was already confirmed by the Commissioner of Central Excise and Customs, Aurangabad vide order-in-original No.73/2009 dated 28.08.2009. Even care should have been taken at the time of issuance of show-cause notice dated 05.03.2009. Until it is proved that the quantities in both the show-cause notices are different, the demand raised i .....

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