9911796707
TMI Blog1997 (7) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, by his order in order in original No. 155/92, dated 3-11-1992 and confirmed the duty demand of Rs. 1,35,476/- and also ordered for confiscation of seized goods, however, granting the release of the same by redemption fine. He has also imposed a penalty of Rs. 10,000/-. The order of the Collector (Appeals) was accepted by the assessee and no was filed by them. Thereafter they filed a letter, dated 1-1-1993 requesting for grant of Modvat credit in respect of Central Excise Duty paid in terms of four gate passes No. 66, dated 19-10-1991, No. 27, dated 21-10-1991, No. 28, dated 21-10-1991 and No. 29, dated 21-10-1991 involving duty amount of BED Rs. 85,296 and SED Rs. 8530/-. The Asstt. Collector passed an order granting them the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The revenue relied on the statement of Shri Tarun Gupta, Manager to show that there was no stock of finished goods as well as raw material in the unit. At the time of visit of Central Excise Officer, it had been revealed that there was no stock of finished goods as well as raw materials of assessee. Further reliance was also made in the statement to show that the copper wire of cross sectional dimension of 6 mm or less was used in the manufacture of standard copper wires and that after 28-8-1991, no production of standard copper wire had been shown in the RG I register. The fact that the stock of copper wire of below 6 mm and of standard wire was nil on 31-10-1991, coupled with the fact that the assessee had not produced any quantity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of refund application and grant of such credit by the Asstt. Collector is not a case of refund to enable the revenue to invoke under Section 11A to issue show cause notice. It has been pointed out that the review order passed by the Collector under Section 35-E(2) of the Central Excise and Salt Act, 1944 and question of raising the demand under Section 11A does not arise. Once the provisions contained in the Section 35-E(2) of the Act are attracted, the Collector of Central Excise may on its own motion call for and examine the record of any proceedings in which an adjudicating sub-ordinate to him has passed any order and may direct the such authority to apply to the Collector (Appeals) for determination of such points arising out of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1993 the assessee was required to have deposited the duty as confirmed therein. The Assistant Collector while so considering their case for Modvat credit, according to the revenue had proceeded to grant the same without assessee following any procedure. Therefore, the revenue was aggrieved with the said order and it was contented that the assessee s claim for Modvat is also unsustainable due to various reasons pointed out in the review application filed in terms of Section 35E(2) of the Act. There was no refund application or refund granted or question of recovery of erroneous refund hence question of issuing show cause notice under Section 11-A did not arise. The assessee was required to have complied with the order in original passed by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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