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TMI Blog2017 (12) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of the Central Excise , Mumbai III. M/s VML has filed appeal against confirmation of demand/penalties and Shri Harishankar and Shri Poojari have filed appeals against penalty imposed. The revenue has filed appeal against dropping of demand against M/s VML and for enhancing penalty ordered by the adjudicating authority against V.B. Poojari (Excise officer), Shri A.D. Shingade (Technical Consultant), Shri A.B. Adhikari (Excise officer), Shri Mohan Krishnan (Excise Clerk), Shri B.M. Sharma (Senior Executive) and Shri Harishankar Acharya (Production Manager). 2. The brief facts of the case are that M/s Vidyut Metallics Pvt. Ltd. are having Plant I and II situated at Wagle Industrial Estate, Thane are engaged in manufacture of Safety Razo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The demands were confirmed by the adjudicating authority vide Order dt. 23.03.99 in totality against which the asseeesee and other co- appellants preferred appeals before the Tribunal. Vide order dt. 30.07.2004 the Tribunal held that demand on 19,95,483/- is established. However it held that demand of Rs. 17,03,031/- in respect of clandestine removal during Dec 94 to Dec 96 and of Rs. 24,42,941/- on unaccounted production and removal during the period Oct 96 to Mar 97 shows an overlap. That whatever has been the unaccounted production has to be unaccounted clearance. The benefit for the period Oct 96 to Dec 96 for the overlap should go to the assessee and the demand has to be thus reworked out. The Tribunal remitted the matter back for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the outsiders and it is thus not understandable as to how clandestine removal could have taken place. Also with the recipient Unit and jobworker taking 100% modvat credit of the duty paid on input, the assessee would not gain anything from clandestine removal. Thus no clandestine removal can be alleged. He submits that since whole situation of paying duty and availing credit by the jobworker and VML I is revenue neutral and there is no justification or motivation for the assessee to remove goods clandestinely thus the demand for the extended period is not sustainable. He relies upon the order of Hon'ble Apex Court in case of NIRLON LTD. Vs. CCE, MUMBAI 2015 (302) ELT 22 in support of his contention. He further argues on merits and factual a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter allowing the benefit of modvat credit availed. Therefore in absence of correct value the dropping of demand to the extent of said product is not proper. 5. We have carefully considered the submission made by both sides. As far as aseessee contention of revenue neutrality and merits of the case is concerned we find that the Tribunal in its order dt.30.07.2004 had remanded the matter back with the limited issue holding as under : "The demand of Rs. 19,95,483/- for the period October 96 to March 97 is confirmed on unaccounted production of CRSS based on production slip quantities & RG 1 entries not showing the same quantity. The Appellants claim that the goods become fully manufactured after slitting, coil forming and final quality cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep records of & at wastage points to collect the data and steady reason and reduce such wastage. The admission of the officers of the assessee that dispatch figures were recorded and not actual product figures in the RG 1, as relied upon by the Commissioner itself leads to the establishment of the charge that Actual production figures was not recorded and dispatch figures in this case are doubtful. Therefore, it can be established that actual production has not been recorded. Such actual production is not found in the factory, there is established charge of removal of set on invoices. The charge of unaccounted production and its clandestine removal is thus established. c) The plea made by the Learned Advocate, of part (I) of Show Cause Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has to be worked out accordingly. The revenue has also filed appeal pointing out that there is lacuna in working out the revised demand as above. We are of the view that the re-quantification of demand cannot be undertaken at this stage since it involves the detail inspection of the records and documents. Further the modvat aspect for the purpose of quantification has also to be looked into. We thus find it appropriate to remand the case back to the adjudication authority for limited purpose of quantification without expressing our views on the same. Both the sides shall submit the relevant papers and records before the adjudicating authority whenever called to do so. The adjudicating authority shall accordingly decide the quantum of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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