TMI Blog2017 (10) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh, Hon ble Member (Technical) For the Applicant : Shri Mukund Chauhan, Advocate For the Respondent : Shri N Satwani, Authorised Representative ORDER Per : Dr D.M. Misra Heard both sides. 2. This is the second round of litigation before his Tribunal. In the first round of litigation, the appellant had pleaded before this Tribunal that the alleged quantity of Texturised Yarn cleared from the factory without payment of duty could not be sustainable as the appellants do not have the capacity to manufacture the said quantity of goods alleged to have been cleared. Accepting the said plea of the appellant, this Tribunal remanded the matter observing as follows: The impossibility or probability of such a high per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o adjudication, and confirmed the demands since the appellant could not be able to make available the machinery installed for determination of production capacity of the machines. 4. Ld Chartered Accountant for the appellants submits that since their factory has been closed at the time of de novo adjudication, they requested the Adjudicating Authority to consider to carry out the trial production on similar make machines installed at other units. It is his contention that the Ld Commissioner erred in not considering the said request and proceeded with the de novo adjudication on the basis of records available. He submits that therefore, the case may be remanded to the Adjudicating Authority to take into consideration the production of si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n before this Tribunal, a plea was made by the appellant submitting that the machines installed in their factory are not capable of producing the quantity of goods alleged to have been manufactured and cleared during the relevant period clandestinely. Accepting their argument, this Tribunal has remanded the matter to the Adjudicating Authority to ascertain the production capacity of the appellant in terms of Rule 173E of Central Excise Rules, 1944, and thereafter to proceed to determine the alleged removal of goods on the basis of evidences available on records. Since the appellant could not make available the machines for trial run, the Ld Commissioner proceeded with the evidences available on record and confirmed the demand accordingly as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in working condition, the same cannot be carried out. I find that the noticee advocating, production capacity of their machine to counter the packing slips and other private records seized during panchnama dated 05.04.95 is an attempt, contrived to mislead the adjudication proceedings in arriving at wrong production data when that particular machine is not in working condition. Hence, I do not accept noticee s request to run test production elsewhere on any machine and proceed to decide the case based on evidence available on records. 8. We find that Tribunal has specifically directed after hearing both sides to carry out trial run to ascertain the capacity of production of the machines installed in the factory premises of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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