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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 ..... t 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 for consideration. Entitlement to benefit of cum-duty - Held that:- The entitlement to the benefit of cum-duty is dependent upon the bona fide payment of duty. Since such fact has not been asserted or discussed either before the Deputy Commissioner or before the Tribunal, the appellant cannot be permitted to raise a question of law, which is based upon a fact. Entitlement to reduced amount of penalty as per sec 11AC - Held that:- As Tribunal has not ordered payment of penalty within a period of 30 days. The appellant has not deposited penalty within 30 days from the date of order of the Adjudicating Authority. Consequently, the appellant is not entitled to reduced amount of penalty. Contention against penalty - no specific role was attributed to the appellant in respect of clandestine removal of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 premises of the owners of the Weigh Bridge were searched on 11.09.2001 and the weighment slips pertaining to the period commencing from 01.04.2000 onwards were recovered and taken into possession. From the records of the Mill after comparison with the record recovered from the Weigh Bridge, it was found that the Mill has manufactured and clandestinely cleared 8818.995 MT of their finished goods i.e. Rectangular Bars valued at Rs.11,42,38,110/- involving Central Excise duty amounting to Rs.1,82,78,098/- and that Mill has received 5961.291 MT of rawmaterial i.e. non-alloy steel ingots without a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable 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 detected is to the extent of 5591 MTs. Then adopting the calculation presented by the Appellant in para 15 n of their appeal the calculation of duty evaded is made as follows. After giving an allowance of 10% towards process loss the quantity of final products that can be made from this raw material works out to 5036 MTs and the assessable value will get reduced from Rs.11,42,38,110/- to 7,24,81,307/-. It is to be noted that this calculation involves some approximation. But the consequence of this approximation is in favour of the appellants. In this type of cases, it is quite often not poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 received by Mill based on Annexure C and Annexure C1 after giving benefit of inputs of furnace oil. The Tribunal has recorded a finding of fact regarding receipt of unaccounted raw-material and production of unaccounted finished goods after the compound levy scheme came to an end on 31.03.2000. The question of the receipt of the raw material by the Mill from the other manufactures, whose appeals were accepted so as to comply with the principles of natural justice, is to determine, identify and fix the liability of such manufactures in supplying the material through unaccounted process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, 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 for consideration. In respect of claim of the appellant for cum-duty, suffice is to state that no such plea was raised either before the Deputy Commissioner or before the Tribunal. The entitlement to the benefit of cum-duty is dependent upon the bona fide payment of duty. Since such fact has not been asserted or discussed, the appellant cannot be permitted to raise a question of law, which is based upon a fact. In respect of question No.(d), the learned counsel for the appellant relies upon Section 11 AC to contend that the appellant has deposited the amount of duty in terms of the order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of proviso to Section 11 AC of the Act. Thus, we hold that an assessee is entitled to reduced amount of penalty only if the amount of duty is paid in terms of the order of adjudication by the Central Excise Officer i.e. the Adjudicating Authority and not in terms of the appellate order passed by Tribunal. The judgment of this Court in M/s Beas Scientific Dyers case (supra) was in respect of an order passed by the Tribunal directing the assessee to pay the penal amount within a period of 30 days from the date of order failing which the penalty payable shall be equivalent to the amount of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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