9911796707
TMI Blog2018 (7) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... checked the stock of goods and relevant records. It was noticed that SSPL maintained private records showing production in terms of number of heats as well as particulars of consumption of electricity; maintained a note book of induction furnace for production of ingots; comparing the statutory production register, RG-I and official heat register with the private records, it was observed that SSPL had not recorded production of 2335.253 MTS of MS ingots during the period 19.03.1988 to 30.04.1989; similarly for the period 01.05.1989 to 31.03.1990, there was an excess unaccounted production of 1761.291 MTS both worked out to be unaccounted production of 4096.544 MTS. Coming to an attentive conclusion that SSPL was liable to duty on this production, show cause notice was issued to them. On further investigation a note book bearing the title "Ingots Movement from SSPL to KSPL" was recovered from SSPL which was further allegedly date wise removal of ingots from 03.04.1990 to 03.03.1992, 58 weighment slips contained in a file recovered from SSPL pertaining to the period 02.12.1991 to 05.03.1992 were recovered and tallied with the RG-I, with ingots register movement. It appeared that duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. After drawing my attention to the decision of the Tribunal dated 17.01.2012, he submits that the Tribunal had specifically directed that the authority should ascertain the capacity of furnace of SSPL as per the capacity claimed by the manufacturers, of such furnace and also consider the determination of production capacity by the Commissioner of Central Excise, Hyderabad-III in pursuance to Induction Furnace Annual Capacity (Determination) Rules, 1997 as also the A.P. Productivity Councils assessment of production capacity of the appellant. It is his submission that despite such clear direction by the Tribunal the Adjudicating Authority merely relied upon the figures mentioned in the heat register and held that production capacity of the furnace of the appellant is 3.38 MTS per heat. It is his submission that these findings are not in accordance with the direction of the Tribunal hence the production capacity needs to be determined 2.10 MTS if that is considered, there is no clandestine/manufacturer of clearances. It is his submission that the Adjudicating Authority has relied upon the statement of director of SSPL who had stated that there was production of 3.5 MTS per heat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 209(A) of the Erstwhile Central Excise Rules, 1944 which is not applicable in the case in hand for KSPL and there is nothing on record, that KSPL has indulged in an activity of clandestine receiving of the goods. 4. Learned Departmental Representative, on the other hand, submits that on the day of visited by the officials on 07.03.1992, they detected suppressed production of 8354.317 MTS of Steel ingots out of which 4250.243 MTS were clandestinely cleared from SSPL to KSPL. It is her further submission that SSPL suppressed the production from March, 1988 to March, 1992 and is proved by the statement given by the Director N. Krishna Rao, electricity consumption register and private heat register. It is her submission that as per appellant's official record, SSPL was producing 3.3 MTS of MS ingots for heat and private heat records indicates production was up to 3.976 to 4.035 MTS per heat. It is the submission that the claim of 3.2 Tons in his defense and the reliance placed by the appellant on the production capacity worked out by the competent authorities in the year 1997 cannot be applied to be correct when their documents to indicate that the production capacity was more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was excess production which was suppressed from the statutory records. 7. On careful consideration of submissions made by both sides, I find that the entire case of the Revenue will stand or fall only if it is concluded whether appellant SSPL has recorded the correct production of MS ingots or otherwise. 8. I find that this is the third round of litigation before the Tribunal on the very same issue. In the first round of litigation, the Adjudicating Authority confirmed the same demands raised against SSPL and imposed penalties, also on KSPL. When the matter was heard by the Division Bench and by Final Order dated 21.11.2003 remanded the matter back by recording as under: "5. We have carefully considered the points raised by both sides. We find that in this case, the duty has been demanded from M/s. SSPL on the ground that they have suppressed the actual production and cleared the goods clandestinely without payment of duty. The Commissioner, in his adjudication order has based his findings on the private register recovered from M/s. SSPL showing the number of heats during the period from 1-5-89 to 29-2-92 as recorded in their register namely log book of induction fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue, the Adjudicating Authority had dropped the proceedings initiated by the show cause notice. Aggrieved by such an order, Revenue preferred an appeal before the Tribunal in Central Excise appeal No. 224/2006. The said appeal was heard and by Final Order No. 1185 dated 15.09.2010, the Division Bench remanded the matter back to the Adjudicating Authority giving some direction in paragraph No. 7.2 for examining certain relevant issues as to the production capacity, which could vital to the core issue as to whether SSPL had clandestinely manufactured and cleared MS ingots during the period in question. 9. I find that the Division Bench of this Tribunal in Final Order dated 15.09.2010, was deciding the appeal filed by the Revenue against the Adjudicating Authority's order of dropping the demands raised and on the question of capacity to produce the MS ingots more than the capacity as claimed by the appellants herein, the Bench recorded the following categorical findings. "7.2. The capacity of the furnace of SSPL as per the invoices of the manufacturer of the furnace was 2.1 MT per heat. There is no evidence on record that the assessee had altered the parameters of the furnace ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roductivity Council, the Adjudicating Authority in paragraph No. 11.1 of the impugned order has not lead any contrary evidence to hold that production of M.S. ingots could be more. The entire findings of the Adjudicating Authority are only on the records of both private and official showing the production of MS ingots per heat in the range of 3.5 to 3.8 MTs. In my view, the findings recorded by the Division Bench in Final Order dated 15.09.2010 as to the production capacity of appellant SSPL of the furnace installed, has reached finality as recorded herein above. Since these findings have attained finality, the Adjudicating Authority could not have without filing an appeal and adducing contrary evidence gone beyond the findings recorded by the Tribunal. In the absence of so, in the adjudication order, the Lower Authority should have followed the order of the Tribunal and considered the production capacity of the appellant SSPL as indicated in the Final Order dated 15.09.2010. 11. On this point itself, it has to be held that the allegation of the Revenue that appellant SSPL had clandestinely manufactured excess production and removed the same without payment of duty falls flat. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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