2020 (11) TMI 350 - AT - Central Excise

Clandestine Removal - non-examination of correctness of opening balance and confirmed demand of ₹ 11,22,927/- - imposition of penalty - documents not verified - HELD THAT - Learned Commissioner (Appeals) has recorded that the appellant has not disputed clandestine removal of the goods but their grievance is about confirmation of the Central Excise duty on the entry as opening balance of ₹ 96,77,194/- appearing in duty calculation worksheet. Since, the Commissioner (Appeals) has clearly held that the correctness of ₹ 11,22,927/- and verification of documents related them to be re-examined, therefore, stating that appellant has not disputed clandestine removal is clear contradictory. The Learned Commissioner (Appeals) s observation that appellant has not disputed the clandestine removal of goods, needs to be expunged and the remand made by the Commissioner (Appeals) has to be considered as open remand in respect of the total duty remand of ₹ 11,22,927/- - Appeal disposed off.

Summary

Issues Involved: Appeal against remanded order examining duty amount and penalty. Dispute over remand terms and observations by Commissioner (Appeals).

Analysis:
1. The appeal challenged an order remanding the matter to examine the correctness of the duty amount and penalty. The appellant contested the observation by the Commissioner (Appeals) that they did not dispute clandestine removal of goods, seeking a modification in the order.

2. The Commissioner (Appeals) remanded the case for re-verification of the demand amounting to ?11,22,927/- but also noted that the appellant did not dispute clandestine removal of goods. This observation was contradictory to the remand terms. The Tribunal held that the remand should be considered open in respect of the total duty amount, expunging the observation that the appellant did not dispute the removal.

3. The Tribunal directed the adjudicating authority to pass a denovo order within three months, considering the age of the matter (2005-2006) and ensuring adherence to principles of natural justice. The appeal was allowed in favor of the appellant based on the clarification of the remand terms and the need for a fresh adjudication order without influence from the contradictory observation.