9911796707
TMI Blog2023 (1) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... ished goods and raw materials without any documentary evidence. Thus, the goods valued at Rs.8,27,980/- was seized. Statement of Sh. Jai Prakash Sharma was recorded on the spot, wherein he stated that the appellant has started manufacturing of Aluminium (Al) circle since November, 2010. Similarly, sh. Balbir Prasad Gupta has also started in his statement that their firm has stated manufacturing from November, 2010. The department has seized various documents from the residential premises of the partner. Show cause notice dated 08.09.2011 was issued to the appellant proposing confiscation of seized goods and penalty on the firm and its partners. It was alleged in para 10 of the SCN dt. 08.09.2011 that the appellant was engaged in manufacturing of Aluminium Circle w.e.f. 11.11.2010. Thereafter, further investigation was conducted by the department wherein various statements were recorded and the seized documents were scrutinized. Based on further investigation, a subsequent show cause notice was issued alleging that the appellant has started manufacturing from July, 2010 and it has been proposed that why duty demand of Rs.10,17,041/- for the period July, 2010 to May, 2011 should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the month of November, 2010. Further stated that they are issuing commercial invoices which do not reflect the Central Excise registration number and/or whether duty was paid under CLS. They are not issuing invoice as per the provisions of Central Excise Rules. 5. The appellant also submitted letter dt. 24.03.2011 mentioning that as the cold rolled circle of aluminium are not exempted from duty, they started production w.e.f. 11.11.2010 after obtaining Central Excise registration, they also started paying duty from November, 2010 under CLS. They also enclosed challans evidencing payment of duty from November, 2010 to March, 2011. Thus, they have started commercial production i.e. 11.11.2020. The only lapse on the part of the appellant is that they have not applied for permission to pay duty under the CLS, in the prescribed format, which they prayed to be condoned. 6. Statement of Sh. M. K. Saxena, Excise Consultant of the appellant was also recorded. He stated that in the month of February, 2011, Sh. Jai Prakash Gupta, Partner handed over him copies of GAR-7 challan for Rs. 12,300/- for each month from November, 2010 showing that they have paid the duty under CLS. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained Central Excise registration. It was also stated that they are not taking benefit of cenvat credit. It appeared to Revenue that appellant was engaged in manufacturing of aluminium circles since July 2010, which appears to be supported by the details of electricity consumption. Further, the Partners have admitted that they were clearing manufactured aluminium circles under commercial invoice at that time. From the resumed records it appeared to Revenue that the appellant was making sales of aluminium circles since July, 2010. Accordingly, treating all the turnover as manufacturing turnover, and as the appellant was not having specific permission to bring finished goods in the factory for trading, excise duty Rs.10,17,041/- was demanded for the period from July, 2010 to May, 2011 including cess with proposal to impose penalty under Rule 25 read with Section 11AC, with proposal to appropriate the amount of duty already deposited under CLS Rs. 61,800/- for the period November, 2010 to March, 2011. Further, personal penalty was also proposed on both the Partners under Rule 26. 9. Both the show cause notices were adjudicated on contest vide common order-in-original dated 27.08.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, as the duty was paid under CLS it was held that the order of confiscation of the finished goods and raw materials, being part of the seized stock on the day of search, is bad as the appellant was not required to maintain records, paying duty under CLS. As para 5 of the said notification provides that during the period an assessee is availing the CLS, he shall be exempt from Rule 8 of the Central Excise Rules. Accordingly, the confiscation was held to be bad and set aside, the penalty imposed under Rule 25 and 26 was also set aside. 11. As regards the demand of duty Rs.10,17,041/- on the alleged clearance of 2,04,740 kg., of aluminium circles, ld. Commissioner taking notice of the contention of the appellant that excise duty can be demanded on the clearances during the period from 01.07.2010 to 31.10.2010 on production capacity of 1 ton per month. However, ld. Commissioner based on the RUDs worked out the clearances made during this period at 1,63,689.39 kg., and after giving allowance for the traded goods 34,185 kg., upheld the remaining quantity at 1,29,504.50 and accordingly held that the appellant is liable to pay duty of Rs. 3,23,761.25 (@ Rs.2500/- PMT as per Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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