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TMI Blog2010 (7) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... cted these contentions. High court upheld the decision of the Tribunal. - C.E.A. Nos. 51 and 52 of 2010 - - - Dated:- 5-7-2010 - CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Ms. Radhika Suri, Advocate for the appellant. None for the respondent. AJAY KUMAR MITTAL, J. 1. This order shall dispose of two appeals bearing CEA Nos. 51 and 52 of 2010. The facts are being taken from CEA No. 51 of 2010. 2. This appeal has been filed by the assessee under Section 35 (G) of the Central Excise Act, 1944 (in short "the Act") against the order dated 1.7.2009 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal") in Excise App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffers from non application of mind as no pleas or evidence referred to in the grounds of appeal were discussed or disproved in the impugned order? v) Whether in the facts and circumstances of the case the order passed by the Tribunal is in gross violation of the principles of natural justice and audi alterem partem being contrary to the ratio of the Apex Court in the case of Union Carbide Vs. Union of India, AIR 1992 SC 298 and is contrary to its own decision in Burdwan Iron Steel Co. (P) Ltd. Vs. CCE, Bholpur-2002 (149) E.L.T. 1134 (TRI-KOLKAT) and Pooja Castings Pvt. Ltd. Vs. CCE, Jaipur-I, 2004 (163) E.L.T. 356 (TRI. DELHI)?" 3. Briefly stated, the facts of the case are that the appellantcompany is engaged in the manufacture of non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of penalty. The Commissioner also ordered confiscation of non-alloy steel ingots which was allowed to be redeemed on payment of redemption fine and also ordered for confiscation of two crucibles of 3MT and 4MT but allowed the redemption of the same on payment of redemption fine. Feeling aggrieved, the assessee filed an appeal before the Tribunal who vide order dated 1.7.2009 upheld the order passed by the Commissioner. Hence, the present appeal by the assessee. 4. We have heard the learned counsel for the appellant. 5. Learned counsel for the appellant submitted that the Tribunal was not correct in coming to the conclusion that the capacity of the mill of the assessee was not correctly determined by the Commissioner and the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of the maintenance engineer. It is true that an assessee working under Compounded Levy Scheme can keep spare crucibles. However, it was required that they have to give necessary intimation about the availability of spares and also before they use such crucibles. The claim of the appellants that crucibles of 3MT and 4MT were kept as stand by appears to be not acceptable. Further, the quantum of production as per log sheets and quantum of electricity consumed also corresponds to use of crucibles of higher capacity. The submissions that they improvise the crucibles of 2MT and 2.5MT capacity to give higher production also cannot be accepted. It does not stand to reason that the company having capacity of higher capacity crucibles of 3M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at by the Tribunal could be said to be erroneous or perverse in any manner. The view taken by the Tribunal is a possible view and is not amenable to challenge as no substantial question of law arises. 9. The second contention of the learned counsel for the appellant relates to recovery under the provisions of Section 11A of the Act. As noticed above, the learned counsel for the appellant had submitted that the recovery in terms of aforesaid provision could only be made within six months from the relevant date, the action now initiated beyond the said period of six months was beyond limitation. The argument deserves to be rejected on two counts. Firstly, a perusal of order passed by the Tribunal shows that this point was never urged by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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