TMI Blog2005 (1) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 4/99, dated 17-1-2000 has confirmed the demand of Rs. 48,46,194/-. Further a penalty of Rs. 15,00,000/- has been imposed under Rule 173Q(1). The plant and machinery of the appellant have been confiscated under Rule 173Q(2). An option to redeem the plant and machinery has been given on payment of fine of Rs. 2,00,000/-. The appellant has strongly challenged the finding of the adjudicating authority. 2. Shri Laxminarayan Goyal, learned Consultant and Shri T. Ramesh, learned Advocate appeared on behalf of the appellants and Shri L. Narasimha Murthy, learned SDR appeared on behalf of the Revenue. 3. The learned Consultant brought to the notice of the Bench that the same issue has been decided by the Assistant Commissioner in his adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no statement has been recorded either from the appellants' principal nor the appellants. Further he pleaded that as per Advani Oerlikon Limited case [1991 (55) E.L.T. 486 (Bom.)], cost accountant certificate can be relied and not the balance sheet of the customer. 4. The learned SDR submitted that the Assistant Commissioner dropped the proceedings on the ground that he was not competent to decide the matter invoking extended period. He did not drop the proceedings on merit. Under these circumstances, there is nothing wrong in the Commissioner issuing a show cause notice invoking extended period on account of suppression of facts. Hence, he urged the Bench to uphold the Order-in-Original. 5. We have gone through the records of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re assessment to sales tax for particular year challenged on some grounds by writ petition which was dismissed on merits, subsequent writ petition challenging same assessment order, on additional grounds cannot be entertained as the principle of constructive res judicata is applicable to the writ petition. The Tribunal in the case of Commissioner of Central Excise, Bangalore v. Andhra Steel Corporation Ltd. [2002 (145) E.L.T. 567 (Tri. - Bang.)] held that repeated show cause notice for the same period after the case has been dropped by the Assistant Commissioner is hit by res judicata and no new material has come into the hands of the Revenue. The Tribunal in the case of Commissioner of Central Excise, Indore v. Siddharth Tubes Ltd. [2004 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued at the same time :- (i) 1977(1) SCC 1 (ii) 1999 BC 452 (Patna)HC In the following decisions, it has been held that no demand is sustainable which is based merely on balance sheet :- (i) 1999 (107) E.L.T. 107 (Tri.) (ii) 1993 (68) E.L.T. 368 (Tri.) (iii) 2004 (62) RLT 626 (Tri. - Del.) 7. In view of the above observations, the Order-in-Original has no merit. The same is liable to be set aside. This order is without prejudice to the proceedings before the Commissioner (Appeals) against the Assistant Commissioner's order. The Commissioner (Appeals) may decide the issue without influenced by our observations in this order. For the reasons stated above, we allow the appeal. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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