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TMI Blog2018 (3) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal raises substantial questions of law. Due to non consideration of the aforesaid two contentions, the impugned judgment and order of the Appellate Tribunal is vitiated, and therefore, there is no option but to pass an order of remand confined to the aforesaid two contentions of law regarding penalty imposed without invoking specific clause under Rule 25 of the said Rules and the penalty being increased by the Adjudicating Authority by issuing a Corrigendum. Matter remanded to Appellate Tribunal. - Central Excise Appeal No.98 of 2015 - - - Dated:- 7-8-2017 - MR. A. S. OKA AND RIYAZ I. CHAGLA, JJ. For The Appellant : Shri Rohit Pawaskar And Shri Sandeep Waghmare For The Respondent : Shri M.Dwivedi ORAL JUDGM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared prior to 12.7.2004 before the insertion of Rules 3, 5(A) of CENVAT Credit Rules, 2004 ? 3. He invited our attention to the impugned Judgment and Order of the Customs, Excise Service Tax Appellate Tribunal West Zonal Bench at Mumbai dated 26th November 2009. He submitted that a specific submission was made before the Appellate Tribunal that a penalty was enhanced by the Adjudicating Authority by issuing a corrigendum which is not permissible under the law. He also pointed out that a specific submission was made that the penalty is imposed under Rule 25 of the Central Excise Rules, 2002 (for short the said Rules ) without invoking a specific clause of the said Rules. He would, therefore, submit that the Appellate Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as cleared the scrap under commercial bills without payment of duty and that proper accounts of the goods manufactured in the workshop were not maintained. The view of the Department was that the scrap resulting from dismantling of the machine is dutiable. A sum of ₹ 15,648/was paid by the Appellant on the scrap generated in the workshop with interest thereon. A show cause notice was issued demanding duty of ₹ 3,16,271/with interest and imposition of penalty under Rule 25 of the said Rules read with Section 11AC of the Central Excise Act, 1944 (for short the said Act ). Though the Adjudicating Authority dropped a portion of demand relating to waste and scrap of old machinery, it confirmed the demand of ₹ 75,674/which conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appointed by the Appellant. 8. As far as the first submission which is based on the factual statements is concerned, the Appellate Tribunal has relied upon the statement of one Shri M.C. Atkare recorded in the investigation. On the basis of the said statement, a finding of fact was recorded that the demand has been raised against the Appellant only on the basis of the waste and scrap arising out of the capital goods on which no Modvat credit was availed by the Appellant. We find no reason to interfere with the said finding of fact. Paragraph 5 of the impugned judgment deals with the second issue canvassed regarding demand being made after limitation period was over. Even this aspect has been considered by the Appellate Tribunal by hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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