9911796707
TMI Blog2009 (1) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... .750 Mts. which in September increased to 935.075. It went up again in October, 1997 to 1059.470 Mts but considerably reduced in the next month of November to 416.990 Mts. Taking into consideration the aforesaid fluctuation in production it is not possible to conclude that changed factor 'd' had played any pivotal role in bringing up production and therefore no inference on that basis could have been raised against the assessee by raising additional demand from 1-10-1997. Therefore, the findings recorded by the Tribunal are unexceptional and do not call for interference of this Court. - 159 of 2002 - - - Dated:- 15-1-2009 - M.M. Kumar and H.S. Bhalla, JJ. [Judgment per : M.M. Kumar, J.]. - The revenue has approached this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuance of a complaint in which allegation was made for mis-declaration of factor 'd' in respect of rolling mill 'B'. One Shri Sushil Mittal, who was present at the time of visiting officer produced their central excise register. After perusal of the declaration made on 26-9-1997 the officers found that rolling mill 'B' was found working while rolling mill 'A' was found closed and idle. The factor 'd' of both the rolling mills were verified in the presence of Shri Sushil Mittal which was measured by Sh. Gurdeep Singh, Foreman of the assessee. The factor 'd' of pinion stand of rolling mill 'B' which was found working was of 405 mm as against 350 mm declared by the assessee in their declaration dated 26-9-1997. The verification report was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity of their Re-rolling Mills should not be determined under Rule 3(3) of the Determination Rules, 1997 by taking into consideration the factor 'd' as 405 mm of their rolling mills. (ii) The duty amounting to Rs. 35,85,742/- for the period 10/97 to 3/98 (less duty already paid, if any) due from them to the department as discussed above should not be recovered from them under Rule 9(2) read with Rule 96ZP(3) of the Rules and question 11A of the Act. (iii) Penal action under Rule 209 of the Rules, should not be taken against them for above said contraventions of the provisions of Central Excise Law." 4. The assessee filed reply and was also called for personal hearing on 5-2-1999. He produced a copy of the certificate of chart show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was partly allowed. The Tribunal concluded that there was no evidence with the revenue to come to the conclusion that factor 'd' was changed w.e.f. 1-10-1997. In his statement Sh. Sushil Mittal, partner recorded on 24-1-1998 has in unequivocal terms stated that the change was effected in the first week of November, 1997. In the absence of any evidence to the contrary the statement has to be accepted that it is from November, 1997 and not from October, 1997. Accordingly the Tribunal directed the adjudicating authority to re-compute the duty liability of the assessee. The penalty was also found to be on the higher side which was reduced to rupees ten lacs. 6. Feeling aggrieved, the revenue has approached this Court with an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that the prayer made by revenue to refer question of law would not on facts arise. It would be profitable to study the table to which reference has been made by the learned counsel for the parties which read thus : (Figures in M.Ts.) Month Year 1996-97 Year 1997-98 April, 940.905 724.406 May 770.755 395.340 June 752.192 800.678 July 761.978 651.565 August 782.535 356.750 Total A 2928.739 Sept. 965.785 935.075 Oct. 766.933 1059.470 Nov. 1027.335 416.990 Dec. 861.126 840.310 Jan. 1031.385 582.990 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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