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TMI Blog1991 (10) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Collector for de novo adjudication. The Deputy Collector had gone beyond the scope of the remand order while readjudicating the case. The Collector (Appeals) had remanded the matter to the Deputy Collector for deciding the limited question whether the shortage was the one already disclosed in 1976. They had raised the plea of time bar. This point had not been considered by the Deputy Collector. It was not open to the Collector (Appeals) while deciding their appeal against this second order of the Deputy Collector to take a view different from the one taken by his predecessor in deciding their first appeal. Reliance for this proposition was placed by the learned Counsel on the decision of the Tribunal in Himachal Steel Kandrori v. Collector of Central Excise, Chandigarh reported in 1988 (37) E.L.T. 291. In the earlier Order-in-Appeal the demand was held to be time-barred and a contrary view is not possible in the de novo decision, the question of the demand being time-barred having been decided in the first Order-in-Appeal and that decided question not being at large for decision in the de novo adjudication on remand. But the Deputy Collector had confirmed the time-barred demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation of surreptitious removal or any deliberate intention for evasion of duty he should have examined the records and furnished a clear observation thereon in respect of the appellants submissions. He found that the adjudication order was clearly a non-speaking one in respect of the goods found short in stock challenge with goods shown short earlier. The order of the Deputy Collector was set aside and the matter remanded for a decision afresh after verification of the records in respect of the submission of the appellants for such difference after indicating a clear observation thereof. 5. It was in pursuance of this remand order that the successor Deputy Collector readjudicated the case by order dated 6-2-1988. He had noted in his order that in the stock-taking of 1976 conducted on 19-7-1976, there was 169.318 M.T. stock in their RG, and actual stock was only 131.450 leaving a shortage of 37.868 M.T. This shortage had not been adjusted in the subsequent years when stock-taking was done and they were regularly showing it in their statements. Their contention was that the department did not raise any objection though this fact was within their knowledge. The raising of dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own way. This principle, however, does not come to the aid of the appellants in assailing the de novo adjudication order that it went beyond the scope of the remand order passed by the Collector (Appeals). It did not exceed the scope of the remand. As stated earlier the first Order-in-Appeal set aside the adjudication order on the ground it was non speaking. The adjudicating authority was directed to verify the records in respect of the submission of the appellants regarding the difference and give a clear observation thereon. Though the Collector (Appeals) had found considerable force in the appellants submission and had set aside the order for de novo adjudication, there is nothing to indicate that he had agreed with them that the demand was time-barred. There is nothing in the de novo order also that the Deputy Collector had overruled their plea of time bar and confirmed the demand. No plea of time bar as such was taken unless their contention that it will be unjustified to raise a demand at that stage for shortage noticed on 19-7-1976 during the stock-taking of 1976 and which was being regularly shown by them in their statements, is taken as a plea that the demand was time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Paras 31, 32 and 33 of 1987 (32) E.L.T. 234 - pp 245-246] 9. In Government of India v. Citadel Fine Pharmaceuticals reported in 1989 (42) E.L.T. 515 (S.C.), the Supreme Court held as follows :- * * * * 10. In view of the specific finding of the Supreme Court in the former case of J.K. Spinning and Weaving Mills which was in the context of Central Excise levy and in view of the specific provisions of Section 11A for recovery of short-levied Central Excise duty, the said provision will apply for short-levied duty, even arising from stock challenge or stock-taking Rule 223A lays down the procedure for taking account of stock of goods in a factory. At least once in every year, the stock of excisable goods in a factory is to be ascertained and if the quantity is less than the quantity which ought to be found, the owner of such goods shall be liable to pay the full amount of duty chargeable on goods found deficient unless the deficiency is accounted for to the satisfaction of proper Officer. In this case, it is on record that the shortage had come to light in the year 1976 itself and it was being shown in the records. The departmental authorities had been made awa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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