TMI Blog2018 (1) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... of closers are not before us, the matter needs to go back to the Adjudicating Authority by way of remand proceedings - appeal allowed by way of remand. - Appeal No. E/75676/2017 - ORDER NO.FO/75067/2018 - Dated:- 15-1-2018 - Shri Justice (Dr.) Satish Chandra, President And Shri V. Padmanabhan, Member (Technical) Mrs. Sudhir Malhotra, Advocate for the Appellant Shri D.Haldar, AC(AR) for the Respondent ORDER Per Shri V. Padmanabhan 1. The present appeal is filed against the Order-in-Original No.18-20/Commr./Bol/2017 dated 13.02.2017. 2. Through the impugned order three show cause notices were disposed of covering the period October, 2009 to October, 2015. The appellant is engaged in the manufacture of sponge iron f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as coal, because of the coal scam. Consequently, their factory was closed for part of the period under consideration. He further submitted that the appellant had intimated the department whenever either one or two kilns were shut down. However, the department has confirmed the demand solely on the basis of the annual production capacity declared in ER-I annual return only by comparing the same with the quantities declared in monthly ER-I returns. He further argued that the duty is payable in terms of Section-3 of the Central Excise Act on the quantity manufactured in the factory. The levy of duty on the basis of production capacity under Section 3A of the Central Excise Act was not in operation for the goods manufactured by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production capacity is to around 73,000 MT per year. But in their ER-7 return they have declared 60,000 MT. This reduced capacity declared has been interpreted by the Adjudicating Authority as taking care of various factors which may cause fall in production capacity. When the monthly ER-1 returns are considered, the total production declared therein turns sought to be much lesser than the 60,000 MT in the various years under consideration. The difference between the two figures has been presumed to be clandestinely cleared. 7. The appellant has contended before us in the present appeal that there were many constrains faced by them during the period under consideration which has curtailed their production capacity. Some of the reasons ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everal days has been duly intimated to the department under acknowledgment. However, if this was true, then the appellant will be entitled to abatement in the Annual Production Capacity for the period for which the factory was closed under due intimation to the department. Since the details of such intimation of closers are not before us, we are of the view that the matter needs to go back to the Adjudicating Authority by way of remand proceedings. The Adjudicating Authority is required to pass orders in Denovo proceedings after taking into account the closures of the factory if intimated in advance. In this connection effective hearing may be extended to the appellant before passing Denovo orders. 9. In view of the above the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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