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TMI Blog2014 (11) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... er matter if the Tribunal had set aside the order of the first appellate authority finding error in relying upon the statement which did not form part of the show cause notice and remanded the matter to the said authority. We express no opinion on that for the present. But the Tribunal, if not inclined to accept such a statement, should have decided the issue on merits, as it had all the powers to appreciate the entire gamut of the case of the assessee as well as the department. As the Tribunal has failed to do so, we find the said order in error - Matter remanded back. - C.M.A. No. 1487 of 2007 - - - Dated:- 30-10-2014 - R. Sudhakar And R. Karuppiah,JJ. For the Appellant : Mr. S. Thirumavalavan For the Respondent : Mr. K. Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent-assessee is engaged in the manufacture of pneumatic products, namely, pneumatic cylinder, pneumatic valves and parts thereof and the dispute in this case related to the period 1994 to 1999. They manufactured tools, dies and moulds required for the pneumatic products and had filed the declarations under Rule 173B and 173C(1) of the Central Excise Rules, 1944 declaring the classification and prices for such moulds, tools and dies before the department. They also paid the applicable excise duty on 25.6.99 and 13.7.99 and cleared the goods to the job workers. After payment of excise duty, the respondent/assessee availed the Modvat credit on the duty paid in the months of June July, 1999 and the department was also duly informed. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a sum of ₹ 8,83,320/- already paid by the assessee towards the duty liability. (iii) Imposing a penalty of ₹ 8,83,320/- under Section 11AC of the Central Excise Act, 1944 read with Rule 173 Q of the Central Excise Rules, 1944. (iv) Demanding interest at appropriate rates under Section 11AB of the Central Excise Act, 1944 on the sum of ₹ 8,83,320/-. (v) Disallowing the Modvat credit of ₹ 8,83,320/- availed by the assessee and ordering recovery of the said amount under Rule 57U(3) of the Central Excise Rules, 1944. (vi) Imposing penalty of ₹ 8,83,320/- under Rule 57U(6) read with Rule 173 Q of the Central Excise Rules, 1944. (vii) Demanding interest at appropriate rates under Section 11 AB of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice and as a result, the penalty and interest also stood expunged. It is against the said order, the Revenue is in appeal before us. 5. Mr.S.Thirumavalavan, learned standing counsel contended that the two substantial questions of law raised in this appeal are not on the merits of the claim of the respondent-assessee, but on the manner in which the Tribunal has proceeded to allow the appeal finding fault with the order of the first appellate authority in placing reliance upon a statement of a person which did not form part of the show cause notice or the adjudication order. Even if this statement is to be eschewed for the purpose of appeal, the Tribunal should have gone into the merits of the case as has been adjudicated by the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haran, on which reliance was placed by the first appellate authority, is one factor which could have been considered for the purpose of deciding the appeal. If the Tribunal was of the view that such statement should be eschewed as inadmissible, it ought to have gone into the merits of the case, on the basis of the adjudication order which was the subject matter of challenge. It is another matter if the Tribunal had set aside the order of the first appellate authority finding error in relying upon the statement which did not form part of the show cause notice and remanded the matter to the said authority. We express no opinion on that for the present. But the Tribunal, if not inclined to accept such a statement, should have decided the is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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