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TMI Blog2013 (2) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices of a nearby weigh bridge i.e. M/s Mola Computerized Dharam Kanda, Singla Cycle Lane, Dhandari Kalan (for short 'the Weigh Bridge') on payment of weighment charges. Thereafter, the Preventive Staff visited the said Weigh Bridge and the statement of an employee was recorded. In the statement, it was stated that the abbreviations mentioned in the notebooks i.e. 'B.B.' & 'M.S.' meant 'Big Ben Exports' & 'Mahajan Steel' respectively. The visiting staff resumed five used weighment slip pads and three note books containing credit account of weighment charges for the period from 01.06.2000 to 04.09.2001 from the Weigh Bridge. On 06.09.2001, the Preventive Staff seized 20.815 MT of Rectangular Bars and also took into possession some record/documents from the Mill. The entries in the three note-books maintained by the Weigh Bridge for credit account of weighment charges were compared with the corresponding weighment slips issued and were found to be matching. It was observed that some of the transactions regarding which weighment slips have been issued from the Weigh Bridge were not being reflected in the Central Excise records maintained by the Mill. The business and residential pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examinations of the persons, whose versions have been relied upon. In further appeal by the Mill against the order of the Commissioner (Appeals) and by the Revenue against the order setting aside the order of assessment, the Tribunal considered the respective contentions in two parts. Part-I was in relation to the appeal of the Mill, whereas Part-II was in relation to the appeals of the revenue against the findings recorded in the appeals of the manufacturers. The Tribunal has returned the following finding: "20. Considering the above aspect we are convinced that it will be reasonable to restrict the demand to correspond to the production of final products that is possible from the unaccounted inputs demonstrated to be received by MSRMPL based on Annexure C and CI. Here the problem is that the Appellant demonstrates that some of the instances of goods coming in related to furnace oil being brought in, rather than steel ingot coming in. It will be proper to re-work figures in Annexure C and C1 to remove such erroneous entries. The appellants have pointed out 24 such cases totaling to 370 MTs of raw material. Once this quantity is deducted the receipt of raw material d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pheld the impugned order, Annexure A-1 passed by the learned Commissioner." We have heard learned counsel for the appellant at length and found no merit in the appeal (CEA No.9 of 2012) filed. Though the Tribunal may be not right in observing that the appellant - Mill has not sought right of cross-examination of the persons, who have produced the record, but the said aspect is wholly immaterial in respect of determination of liability of the appellant. In fact, the liability of the appellant - Mill is based upon proof of 5961.291 MT of raw-material i.e. non allow steel ingots valued at Rs.6,57,72,574/- involving Central Excise duty amounting to Rs.1,05,23,612/- received in the mill premises and the manufacturing and clearance of 8818.995 MT of finished goods i.e. Rectangular Bars valued at Rs.11,42,38,110/- involving Central Excise duty amounting to Rs.1,82,78,098/-. The details of ingots received are mentioned in Annexure C and C1 to the show cause notice for the period from 01.06.2000 to 31.03.2001 and 01.04.2001 to 04.09.2001. In fact the Tribunal has restricted the demand corresponding to the production of final products possible from the unaccounted inputs demonstrated to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 before the Deputy Commissioner, Central Excise, whereas the Mill is Noticee No.2. The Deputy Commissioner has taken note of the statement of Shri Sandeep Jain, Director of the Appellant admitting that vehicle Nos. PJL - 3686 and PBL - 2541 are owned by them and are used for transportation of steel ingots to their buyers. It has been recorded that he was evasive to the question as to how their vehicle was weighed at Weigh Bridge and tried to mislead the Department that slag/waste must have been weighed. The Deputy Commissioner returned a finding that slag/waste carries no commercial value, therefore, he concluded that entries of weighment recorded in Weigh Bridge are of transaction between the Mill and the appellant. After recording such finding, the Deputy Commissioner dealt with the plea of Mill in respect of cross-examination of employee of Weigh Bridge. The appellant has not sought the cross-examination of the employee of Weigh Bridge, as the appellant has never disputed the correctness of the record of Weigh Bridge, which is apparent from the findings recorded by the Deputy Commissioner based upon the statement of Shri Sandeep Jain. Therefore, question No.(b) does not arise f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent, of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect." In terms of the first proviso, 25% penalty is leviable only in case the amount of duty is paid in terms of an order passed by the Central Excise Officer. Central Excise Officer is the person, who makes assessment for the first time i.e. the Deputy Commissioner in the present case. The appellant has not deposited the amount of duty in pursuance of such an order passed by the Deputy Commissioner. Therefore, the benefit of proviso is not available to the appellant. The proviso is meant for a person, who complies with the order forthwith so as to conclude the proceedings. Since, the issue was disputed by the appellant before the Commissioner (Appeals), therefore, the appellant is not entitled to reduced penalty in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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