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TMI Blog2019 (10) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... ons before the Commissioner and in the grounds of appeal have not produced any records evidencing the same. In the absence of the same, their submissions do not hold water and therefore, we are not inclined to accept the same. Invocation of section 11 of CEA - HELD THAT:- Section 11 pertains to recovery of sums due to the Government. That is to say, there should be a confirmed demand against the notice, on the date of invocation of the section, as on the day of notice. As on the date of transfer of unit from M/s PBPL to the appellants M/s JISL even the show cause notice was not issued. The show cause notice was issued on 31.10.2008 and was confirmed by Order-in-Appeal dt.27.07.2010 against M/s PBPL. Therefore, the issue of SCN to M/s JIS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of duty by availing exemption under Notification No. 43/2001-CE (NT) dt.26.06.2001 as amended from time to time read with provisions of Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001. On the basis of certain intelligence received, the premises of the appellants were searched and the department came to a conclusion that the appellants have diverted/misused/non-accounted for a quantity of 4,36,097 OTS cans during the period August 2001 to September 2005. A show cause notice seeking recovery of applicable duty of ₹ 11,56,920/- was issued to the appellant, imposed penalty of ₹ 25,000/- on Shri V.S. Purushotam Reddy, Accounts Officer and also ordered that the demands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) has given allowance to a number of cans available in the factory while computing the duty liability. We find that the appellants have taken a plea that all the cans have been used in the export goods directly or after receiving from job workers and there was wastage and home consumption of 73,836 OTS cans and the actual shortage comes to 42,515 OTS cans. Therefore, a total duty of ₹ 4,54,3018/- is payable on 1,16,315 OTS cans only and the same has been duly discharged. However, we find that the appellants other than making such averment in the submissions before the Commissioner and in the grounds of appeal have not produced any records evidencing the same. In the absence of the same, their submissions do not hold water and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the provisions of this Act or of the rules made thereunder including the amount required to be paid to the credit of the Central Government under Section 11D, the officer empowered by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) to levy such duty or require the payment of such sums [may deduct or require any other Central Excise officer or a proper officer referred to in section 142 of the customs act, 1962 (52 of 1962) to deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control or may be in the hands or under disposal or control of such other officer, or ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Central Excise Officer may, by a notice in writing, require any other person from whom money is due to such person, or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held, or at or within the time specified in the notice, not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount; (ii) every person to whom a notice is issued under this sub-section shall be bound to comply with such notice, and in particular, where any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice was not in existence. Therefore, we find that the invocation of section 11 in show cause notice even before the demands are confirmed is not as per law. We find that learned Commissioner has found that the three conditions contemplated under section 11 of the Central Excise Act, 1944 are viz., a) the person from whom duty is recoverable/due, transfers or otherwise disposes or effects any change in ownership; b) of business or trade, either in whole or in part; c) in consequence of which he is succeeded in such business or trade He relied upon the decision of the Hon ble High Court of Bombay in the case of Krishna Lifestyle Technologies Limited Vs UOI [2008 (229) ELT 173 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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