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TMI Blog2016 (9) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... furnaces together have been raised on assumption and presumption, which is not tenable. Hence, the appellant is liable to pay duty on the basis of production capacity only for one furnace for the month of September, 1997, or ₹ 7.5 lakhs. The appellant will be liable to pay only the balance demand, after adjustment of the amount of ₹ 3,20,000/- and ₹ 2,11,857/- and any other payment if made. We further hold that in view of the Law clarified by the Hon'ble Supreme Court in the case of Shree Bhagwati Steel Rolling Mills and others Vs. Commissioner of Central Excise [2015 (11) TMI 1172 - SUPREME COURT], the appellant is not liable to pay any interest and penalty. - Decided partly in favour of appellant - E/2700/2011[DB] - Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnaces (@ 7.5 lakhs per furnaces of 4.5 Tonnes). Thereafter, it was noticed by Revenue that for the month of September, 1997, appellant has cleared 751.080 M.T. of M.S. Ingots but had deposited ₹ 3,20,000/-only vide T.C. No.2/97-98 dated 2.9.1997. However, during August, 1997, the appellant had cleared 413.605 M.T. attracting duty @ 600/- per M.T. amounting to ₹ 2,48,163/- and has deposited a sum of ₹ 4,60,000/-. Thus, after adjusting the duty for the month of August, there was surplus of ₹ 2,11,837/- lying unutilized. Accordingly, Revenue issued S.C.N for duty not paid at ₹ 8,58,163/- (Rs. 15 lakhs -3,20,000-2,11,837). Further interest and penalty with also purposed. The appellant contested, the S.C.N. statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherein it is observed that the jurisdictional Assistant Commissioner in his report dated 13.9.1997, have stated that the appellant was having two induction furnaces, two transformers and one standby crucible and both transformers were connected with the power supply. Thus, seeing entire arrangement and availability of two transformers connected with the power supply it is incorrect to say that only one furnace was in operation. Accordingly, it was concluded that the version of the appellant during September, 1997 only one furnace was in operation was not true and they were correctly liable to pay Central Excise duty of ₹ 15 lakhs for the month of September, 1997. The -Jt. Commissioner further upheld the liability to pay interest an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the Hon'ble High Court vide letter of Revenue dated 11.5.2015, received on 18.5.2015, the appeal was fixed for final hearing and notices were issued. The notices were issued on the appellant and the same were returned back as unserved with the remark that appellant is not found at the address, the factory is lying closed, as such, notice was issued through jurisdictional Commissioner vide order darted 21.1.2016. It has been informed by the Jurisdictional Commissioner that the Superintendent entrusted to serve the notice found the factory closed and no person was available to receive the notice at the address and accordingly, notice was served by affixture on 25.4.2016, in the presence of two independent witnesses, who had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had intimated by their option letter dated 26.8.1997 that they will be operating only one furnace and it appears that Revenue failed to seal the other furnace. Accordingly, in absence of evidence that the appellant operated both their furnaces for the month of September, 1997, the demand for the two furnaces together have been raised on assumption and presumption, which is not tenable. Accordingly, we hold that the appellant is liable to pay duty on the basis of production capacity only for one furnace for the month of September, 1997, or ₹ 7.5 lakhs. The appellant will be liable to pay only the balance demand, after adjustment of the amount of ₹ 3,20,000/- and ₹ 2,11,857/- and any other payment if made. We fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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