- (1.) WE have heard Shri A.P. Mathur, learned counsel for the appellant. Shri R.C. Shukla appears for the Central Excise Department. The assessee -appellant has preferred this Central Excise Appeal under Section 5G of Central Excise Act, 1944 on the substantial questions of law as below: - (i) Whether the Hon'ble Tribunal was justified in demanding Rs. Six lacs in compliance of Section 35F of the Central Excise Act, 1944, on the basis of demand which was not raised in the show cause notice and the reasoning given in the notice for raising the demand of Rs. 2, 26, 80, 122/ - has not been considered by the Commissioner, plausible and sufficient? (ii) Whether the Hon'ble Tribunal was justified in sacrificing the principles of natural justice while directing to deposit Rupees Six lacs on account of the created demand of Rs. 13, 70, 150/ - by the adjudicating authority ignoring the allegations made in the show cause notice? (iii) Whether the Hon'ble Tribunal was justified in ignoring the fact that duty demanded on the shortage already stands deposited which is sufficient security to safeguard the interest of the Revenue as goods duly reflected in the prescribed records cannot be removed surreptitiously? (iv) Whether the Hon'ble Tribunal is justified in passing the order on the stay -cum -waiver application without dealing with the contentions of the appellants which were specifically raised and argued while pressing the stay -cum -waiver application on the date of hearing?
(2.) IT is submitted by Shri A.P. Mathur, appearing for the appellant that the CESTAT has committed an error in recording a finding, that the question, as to whether the demand of duty is based on unaccounted purchase of scrap could be confirmed, when in the show cause notice no such duty was demanded. In the present case, we find that the duty demand of Rs. 2, 13, 09, 972/ - was dropped, except Rs. 13, 70, 150/ - against M/s. Sunita Ispat (P.) Ltd., and the penalty of like amount. The appellant deposited Rs. 3, 35, 023/ -. The CESTAT required the appellant to make a further deposit of Rs. 6 lacs as a condition for waiver of the remaining amount.
(3.) WE find considerable force in the submission of Shri A.P. Mathur, that when in the show cause notice the duty was not demanded on the basis of unaccounted purchase of scrap, the demand on that basis could not be confirmed in the Order -in -Original. There must be a demand in the SCN to be confirmed in the order. The Central Excise Appeal is accordingly disposed of with directions that the CESTAT will not insist the appellant to deposit Rs. 6 lacs as a precondition, to hear the appeal on merits.;