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2019 (10) TMI 96

..... tice - HELD THAT:- The Ld. Counsel has raised very important issues related to principles of natural justice in as much as whether compliance of Section 36 B (2) was made for taking computer printout, the Ld. Counsel also pointed out that the hard disk from where the computer printout was taken needs to be examined, which will show that whether the data is relevant or it is for the purpose of training as claimed by the appellant. The issue 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 .....

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..... taining to various companies namely 1) M/s. Nova Bimet Technologies Pvt. Ltd Silvasa and their Merchant Exporter 2) Resilient Auto (I) Limited Silvasa 3) M/s. La febrica, Rajkot, all the incriminating documents seized under Panchnamas for further investigation. During the course of search some goods were found in excess which was placed under seizure by drawing a panchnama under the 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 excisabl .....

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..... erest leviable thereon under section 11AB of the Act. 7) I impose penalty of ₹ 2,55,73,010/- (Rupees Two Crores fifty five lakhs seventy three thousand ten only) under section 11AC of the Act upon the Notice no. 1. 8) I impose penalty of ₹ 5,00,000/- (Rupees Five lakhs 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 .....

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..... amination of the Hard-Disk from where the computer printout was taken. He submits that throughout from Show Cause Notice stage it is the appellants submission that the computer data is not authentic data of any 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 .....

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..... estine removal, the company was in loss and its account became NPA. As regard the provision of Section 36 B (2), he referred to panchnama 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 c .....

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..... these issues proper consideration is required. 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 .....

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