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Shivam Casting Versus Commissioner of Central Excise

2017 (9) TMI 991 - GUJARAT HIGH COURT

Clandestine removal - recovery of Central Excise duty with interest and penalties - Held that: - We do not find that the Tribunal understood the Commissioner's order as being passed solely on the Chartered Engineer's certificate. According to the Tribunal, this was one of the important grounds which weighed with the Commissioner in dropping the proceedings. The perusal of the order of the Commissioner would establish that the Tribunal's observations are correct - The Commissioner did refer to ot .....

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decided against appellant. - Tax Appeal No. 601 of 2017 - Dated:- 14-9-2017 - MR. AKIL KURESHI AND MR. BIREN VAISHNAV, JJ. For The Appellant : Mr Paresh V Sheth, Advocate ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The assessee is in appeal against the CESTAT dated 16.05.2017 raising following questions for our consideration: 1) Whether the CESTAT is correct in remanding the case to the Original adjudicating authority, for reappreciation of Chartered Engineer s Certificate on the b .....

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remanding the matter only on the issue of certificate of Chartered Engineer and ignoring the fact that the adjudicating authority has decided the show cause notice also on the merits of the case? 5) Whether the CESTAT is correct in directing the department to verify Chartered Engineer s certificate, by independently assessing through experts, verification of purchase documents, brochures/pamphlets issued by the manufacturers after lapse of 11 years and that too without considering the fact that .....

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. The Tribunal by impugned judgement remanded the case before the Commissioner making following observations: 5. We have carefully considered the submissions advanced by both sides. The Revenue has assailed the impugned order on the ground that even though the investigation was over and the show cause notice was issued, the plea of production capacity is less than the quantity alleged to have been removed has been taken for the first time through the Chartered Engineers Certificate produced duri .....

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the company. A certificate issued by Chartered Engineer dated 8.4.2006, wherein certified that Noticee has installed Cupola Furace and after considering the various parameters, the Furnace could work for 15 days a month and the total production capacity per day could be assessed at 2000 to 2750 Kg. per day. Considering the observation of the Chartered Engineer, and average estimated production of 2500 kg., the total production of the Noticee, per year could come to only 4,50,000/- and for the pe .....

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e for melting of metal can be carried out by any other means. Hence as per the Chartered Engineer factory work for full efficiency then turnover of the company could come to about of ₹ 75,00,000/- and the said turnover being less then exemption limit of ₹ 1,00,00,000/-. However the said production includes rejection which is again melted in furnace for re-casting. Thus, Noticee No. 1 could not have produced the goods beyond exemption limit by the installed and certified machinery. 3. .....

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ge of clandestine removal of the quantity alleged in the Show Cause Notice is failed. 6. On going through the above finding, we do not harbour any doubt that the ld. Commissioner has been influenced by his finding that since the unit of the Respondent is not capable of manufacturing the quantity alleged to have been removed clandestinely, in view of the Chartered Engineers Certificate, therefore, the allegation of clandestine manufacture and clearance made on the basis of entries made in various .....

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o expressed similar view and remanded the matter by allowing Revenue to furnish necessary expert opinion in rebutting the claim of the assessee therein. Therefore, we remand the matter to the adjudicating authority with the direction to get the Chartered Engineers Certificate verified and if necessary could independently assess through experts, verification of purchase documents, brochures/pamphlets issued by the manufactures of the machines, etc., the production capacity of the installed machin .....

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error in remanding the proceedings enabling the department to controvert the contents of the Chartered Engineer's certificate produced by the assessee. After a long gap of time it will not be possible for the assessee to produce further material in support of its stand that the annual production capacity of the unit could not have exceeded ₹ 10.50 lakh kilograms whereas the department had worked out clearance of ₹ 29.42 lakh kilograms. Counsel further submitted that the Tribunal .....

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