TMI Blog2008 (7) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Appellant. None, for the Respondent. [Order per : D. A. Mehta, J. (Oral)]. - The Appellant Revenue has proposed the following two questions : (i) Whether the Hon'ble CESTAT was right rejecting in findings of the original authority as well as those by the Commissioner (Appeals) based, inter alia, based on such confession and reasonings to quash and set aside such Order-in-Appeal dated 30.12.2004 on the ground of lack of evidence to support clandestine removal charges made out in the initial? (ii) Whether the Hon'ble CESTAT was right in ignoring the ratio of settled law applied by the Commissioner (Appeals) wherein he held that it is not necessary that in quasi judicial proceeding offence is to be proved with mathematical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1234 Kgs in respect of Beta Blue totalling 5162 Kgs of production in their C. Ex. Records for the year 1997-98. Therefore, it appears that noticee has shown less production of 3402.40 kgs of Beta Blue and Alfa Blue as detailed above". The Adjudicating Authority raised total demand of Rs.3,79,583/-. The assessee carried the matter in Appeal before Commissioner (Appeals) who upheld the demand in question but at the same time accepted the claim of respondent assessee that nine batches of Alpha Blue and Beta Blue equivalent to 4950 Kgs. of CPC were lost in the process of manufacture. 3. The matter was carried by way of Second Appeal before the Tribunal by the respondent assessee. The Tribunal has recorded the following facts. "2. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) Confirm credit of Rs.61,281/- paid vide TR-6 challan on 9 lost batches. (c) Proposed to impose penalty under Rule 173(Q)(1), read with Section 11AC and Section 11AB. 3. The Addl. Collector upheld the charges, confirmed the demand and imposed penalty of Rs.4,50,000/-. The Commissioner (Appeals) accepted the contention that no duty can be demanded on the lost 9 batches. However, he confirmed the charge of removal of finished goods on the basis of input-output ratio and increased production, and dis-allowance of credit of Rs.61,281/- and upheld the penalties with interest. Hence this appeal." After hearing the parties the following findings have been recorded by the Tribunal : "5. Show cause notice admittedly based on the declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for any penalty. Consequently there cannot be recovery of any interest under Section 11AB in this case, since there is no determination of duty amount." 4. The learned Counsel for the Appellant has emphasized the fact that it was the respondent assessee who had intimated the Revenue vide communication dated 10.08.1996 that the respondent assessee was going to adopt new French technology and as per the agreement with the supplier of the machinery the yield was expected to be around 78% to 80% as against the conventional yield of 80% to 90%. Therefore, once this declaration had come from the respondent-assessee it was not open to the respondent-assessee to take a different stand and considering the basis of yield as per statement of one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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