2009 (1) TMI 291 - HC - Central Excise

Summary

Issues involved:
1. Confirmation of duty demand and penalty by the Tribunal
2. Benefit of condonable loss as per Circular issued by the Board
3. Set off against shortages of different product groups
4. Point of limitation not raised before the Tribunal

Analysis:

1. The High Court at Calcutta heard the appeal against an order passed by the Tribunal confirming a duty demand of Rs. 5,24,23,603/- and an equal penalty imposed by the adjudicating commissioner. The Tribunal detected an adjudicated loss during a joint stock taking. The appellant argued that no notice was served under Rule 223A of the Central Excise Rules, which allows for an enquiry when the commissioner deems it necessary to take stock of excisable goods. The Tribunal considered the appellant's contention but ultimately upheld the demand based on losses exceeding the condonable limit prescribed by a Circular issued by the Board. The excess in rails could not be set off against shortages of 'Z' piling, as they were separate product groups with unexplained losses beyond the condonable limit being the appellant's responsibility.

2. The Court found no reason to interfere with the duty demand confirmed by the Tribunal, as the point of limitation was not raised before the Tribunal and was deemed abandoned by the appellant. The respondent was estopped from raising the point at this stage. Therefore, the Court confirmed the Tribunal's order without finding any illegality or irregularity. The application and appeal were dismissed without costs.

3. All parties were instructed to act on a xerox signed copy of the order, and an urgent xerox certified copy could be supplied to the parties upon compliance with formalities.