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TMI Blog2022 (2) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... e have perused the affidavit filed in support of the condone delay application and we do not appreciate the manner in which the affidavit has been drafted, which seeks to shift the blame on the erstwhile panel counsel. Be that as it may, the affidavit is bereft of any particulars and it appears that a decision has been taken to file an appeal much after the expiry of period of limitation for filing the appeal. Learned Counsel for the appellant submitted that the merits of the matter may also be taken into consideration. It is seen that the notice was sent to the respondent along with annexures and the same has returned with the postal endorsement dated 08.01.2020 "refused by dispatch, SAIL, Bolpur Works". Since notice has been refused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case, the Learned Tribunal is right and justified in allowing the appeal of the assessee without appreciating that based on Annual Dispatch Summary being an authorized Official record prepared by the respondent company for the purpose of management information and accounting purpose, the demand of central excise duty along with interest and penalty in terms of section 11A(2) read with 11AB and 11AC of the Central Excise Act, 1944 can be made against the respondent? 2. Whether the Learned Tribunal has committed gross error in not appreciating that when in terms of section 4 read with Section 212 of the Companies Act, 1956 the respondent failed to produce any document that M/s. ACC, DCSL is a subsidiary to the respondent Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed molten slag from the respondent for manufacture of granulated slag which is cleared by the said ACC, DCSL Works on payment of excise duty. It is further alleged that the respondent has nothing to do with the matter regarding the quantity of clearance of granulated slag made by M/s. ACC DCSL. Thus, it was stated that the respondent has attempted to mislead the department by taking the plea that clearance of granulated slag made from the 'new plant' pertains to DCSL. This in the opinion of the Commissioner was a misstatement made by the respondent with an intent to evade payment of excise duty and that the respondent has suppressed the actual quantum of clearance of the said goods in the statutory ER-1 returns and, therefore, proposed to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efully perused the materials on record, we are of the considered view that Tribunal rightly granted relief to the respondent. We support such conclusion with the following reasons:- At the outset it needs to be pointed out that the order passed by the appellant dated 11th March, 2010, impugned before the Tribunal is a non-speaking order. Substantial portion of the order has been devoted by the appellant to reject the contention of the respondent that they are bona fide assessee and Government of India Enterprise. The reply given by the assessee that there is nothing to indicate to establish the allegation that the ' new plant' belongs to the respondent and they were the manufacturer of the granulated slag and without rendering any finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en copy of Page No. 163 of the annual dispatch summary for the financial year 2007-08 is annexed hereto and marked 'C'. In or around November, 2008, while auditing the books of account, the CERA raised an objection for showing dispatch of granulated slag under two headings in the said Report, i.e. 'old plant' and 'new plant'. The appellant by its letter dated 28.01.2009 clarified that in the Operational Statistics Report, the dispatch figure of granulated slag generated in the plants of the appellant and in the plant of DCSL was shown under the headings 'old plant' and 'new plant'. It was stated that the said Annual Report was not a statutory document. The said DCSL purchased molten slag from the appellant for manufacture of granul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 01.03.2006. The Tribunal further proceeded to consider as to what would be the significance of the entry "new plant" and noted that the annual dispatch summary is not a statutory record or an authorized document. The respondent explained that during the relevant period, respondent had one granulation plant which was called old plant, one plant was set up by M/s. ACC, DCSL which is in the factory premises of the respondent which was shown as 'new plant' in certain records and that the granulated slag emerging from this plant were cleared on payment of duty. Thus noting these facts, the Tribunal was satisfied with the explanation offered and also took note of an important fact that duty has been paid by M/s. ACC, DCSL with granulated slag, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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