TMI Blog2019 (10) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... of production capacity vis a vis Electricity consumption also to be examined properly. On these issues proper consideration is required. The matter required reconsideration - matter related to assessees appeals, are remanded to the adjudicating authority for passing a fresh order. Cum-duty benefit - HELD THAT:- Merely because the goods were allegedly cleared clandestinely, Section 4 cannot be applied differently - As regard the doubt raised on the valuation of the goods, we find that in one hand the show cause notice has conclusively arrived at transaction value which is final. There after no question can be raised by the revenue on the value ascertained and duty was computed on such values in the show cause notice - Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reasonable belief that they are liable for confiscation. Various statements of the directors and other persons were recorded, various computers print outs were taken and also some invoices were found on the basis of this document coupled with statements recorded, the officers were of the belief that the appellant are indulged into clandestine removal of excisable goods manufactured by them. Accordingly, an SCN dated 19.09.2006 was issued. 2. The adjudicating authority adjudicated the said show cause notice and passed the following order: 1) I determine duty amounting to ₹ 1,40,09,670/- (Rupees One Crore Forty Lakhs Nine Thousand Six Hundred Seventy) (Calculated as per Annexure attached with this order) as the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khs only) under Rule 26 of the Central Excise Rules, 2002 upon the Notice no. 2. 9) I impose penalty of ₹ 30,000/- (Rupees Thirty thousand only) under Rule 26 of the Central Excise Rules, 2002 upon the Notice no. 3. 10) I impose penalty of ₹ 1,00,000/- (Rupees One lakh only) under Rule 26 of the Central Excise Rules, 2002 upon the Notice no. 4. 11) I impose penalty of ₹ 1,00,000/- (Rupees One lakh only) under Rule 26 of the Central Excise Rules, 2002 upon the Notice no. 5. 2.1 The aforesaid duty was confirmed by reducing the demand raised in show cause notice due to consideration of the submission of the appellant on account of Cum Duty Price. Being aggrieved by the said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y manufactured or removal of the goods where-as that data is created only for a training purpose of the Software, therefore, the computer printout taken from the said data has no relation with any alleged clandestine removal. With the above submission he prays for remand of the matter. In support of his above submission he placed reliance on the following judgment. Agrasen Syntex Pvt. Ltd. Vs. Commissioner Of C.Ex., Hyderabad 2003 (154) E.L.T. 431 (Tri. Bang.) Alfa Spring Ltd. Vs. Commissioner of Central Excise, Kanpur 2006 (198) E.L.T. 74 (Tri. Del.) Commissioner of C.Ex., Chennai Vs. G.M . Re-Rollers 2003 (153) E.L.T. 392 (Tri.- Chennai) Shivam Steel Corporation Vs. Commissioner Of C.Ex. CUS., BBS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchnama that the computer printout was taken in accordance with the said provision. The adjudicating authority also dealt with the issue of the Electricity Consumption. As regard the claim of the appellant that the data of computer printout was taken for training purpose is incorrect as there was no indication to this effect. Documents were signed, if it is for training purpose there is no need of any signature of such document. He submits that there are various evidence relied upon in the show cause notice. Therefore, even if some evidence not acceptable, as per the preponderance of the probability the case of clandestine removal is established. He relied upon the judgment of Hon ble Supreme Court in the case of Collector Vs. D. Bhoormull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired. We are therefore, of the view that matter on the above issues needs reconsideration. However, all the issues are kept open. Thus the matter related to assessees appeals, are remanded to the adjudicating authority for passing a fresh order. 11. As regards revenues appeals, it is only on the issue that whether the Ld. Adjudicating authority is right in extending the benefit of cum duty price. This issue is no longer Res-Integra in view of the following judgments. Hansispat Ltd Vs. Commr. Of C.E.X. C.U.S. S.T., Rajkot 2016 (343) E.L.T. 622 (Tri.-Ahmd.) Commissioner of Central Excise Vs. Uday Auxichem 2012 (275) E.L.T. 565 (Tri.Ahmd.) Saafalya Industries Pvt. Ltd. Vs. Commr. Of C.EX. (Appeals), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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