TMI Blog2017 (9) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... arger Bench - issue decided in favor of appellant and against Assessee. Whether Rule 25 of the Central Excise Rules 2002 is self contained as the same is already subject to provisions of Section 11 AC of the Central Excise Act, 1944? - Held that: - it is subject to provision of Section 11AC of Act, 1944, mere non- mention of Section in a particular order or notice by itself will not render the same bad, if otherwise all ingredients are satisfied - matter remanded to Tribunal to restore the appeal. Appeal allowed - decided partly in favor of Revenue and part matter on remand. - Central Excise Appeal No. 8 of 2015 - - - Dated:- 30-8-2017 - Hon'ble Sudhir Agarwal And Hon'ble Ravindra Nath Mishra-II, JJ. For the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter referred to as Act, 1944) has been invoked. Tribunal has ignored the fact that Rule 25 of Central Excise Rules, 2002 (hereinafter referred to as Rules,2002) itself is subject to Section 11AC of Act, 1944 and if ingredients are satisfied nothing is required. It is further submitted that in regard to same notice, Tribunal has taken two different but contrary views. Since earlier appeal was decided by Tribunal on 25.07.2010, the present order which is subsequent one and which has not taken notice of earlier order, different view taken by is not sustainable since Tribunal if intended to take a different view it had to refer the matter to larger Bench in view of Section 129(C) of Customs Act, 1962 (hereinafter referred to as Act, 1962) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l authority relates to another party and the same is not relevant to the present proceedings]. The Commissioner (Appeals), on appeal by the party, set aside the order of confiscation and imposition of penalty. Hence the Department is in appeal. 4. Learned SDR submits that the stock taking was conducted by weighing the stock in the presence of independent witnesses and in the presence of authorised signatory of the respondent company. After several months, when the statement was taken on 28.4.05, Shri Vinay Bhasin, authorised signatory of the respondent company clearly admitted the excess stock and was not in a position to offer any explanation for the excess stock. Therefore, the goods were clearly offending in nature as the same were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry on 5.11.04. There has not been any representation alleging that the stock taking was not conducted properly and the claim has been made for the first time in reply to the show cause notice. It is not the case of the respondent that they are manufacturing very many varieties of CTD bars, each one having different dimensions and consequently, the weight of each and every piece is different. It is common knowledge that the CTD bars are meant for specific application and each variety has fairly accurate weight and the variation in weight in respect of any variety of bars cannot differ widely in which case, the same may not be acceptable to the customers. It is also not the case of the respondent that they have individually weighed each CTD b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the original authority is restored. However, considering the entire facts and circumstances of the case, some leniency in the matter of quantum of redemption fine and penalty is justified. 7. In view of the above, the appeal by the Department is partly allowed and the order of Commissioner is set aside and the order of the original authority is restored with the following modification: a) Confiscation of the excess found goods is upheld but the redemption fine is reduced from ₹ 4,44,000/- to ₹ 2,50,000/-. b) Penalty imposed on M/s Sarada Steel Industries Ltd. is reduced from ₹ 2,17,046/- to ₹ 1,00,000/-. 6. It is true that the language of notice in the case of Commissioner of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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