- (1.) The Court : Heard the learned Advocate for the parties at length. We have perused the petition. This appeal is against an order passed by the learned Tribunal on 14th December, 2007. It appears that the learned Tribunal after considering the facts and the material placed before it affirmed the demand made on the appellant to the tune of Rs. 5,24,23,603/- and equal amount of penalty was also imposed by the adjudicating commissioner, and thus the adjudicated loss has been detected at the time of taking the joint stock by the said authority along with the petitioner/appellant. The point tried to be urged before us that no notice was served under Rule 223A of the Central Excise Rules. From the said r ule, it appears that after the commissioner deem it necessary or proper to take the stock of excisable goods, then and then only, he will issue notice and shall make an enquiry into the matter which was also specifically pointed out b efore us by the learned counsel appearing for the parties. It appears that the point which has been sought to be raised is that the appellant must get the benefit of the condonable loss as per the Circular issued by the Board which was also taken into account by the learned Tribunal and the learned Tribunal has opined in favour of the department and came to the conclusion that the show-cause notice as well as the order passed by the authority and the demanded amount has been worked out only in respect of the losses in excess condonable limit prescribed under the circular issued by the Board. It also appears that the learned Tribunal duly came to the conclusion that the excess in respect of rails cannot be set off against the shortages of Z' piling since these are separate and distinct product groups and no justification also pleaded or explained in respect of the shortages fund at that point of time by the authorities. It is not disputed that unexplained loss beyond the percentage of condonable loss prescribed by the Board, the appellant is accountable for the same.
(2.) In these circumstances from the materials placed before the learned Tribunal as well as before us we do not find any reason to interfere with the duty demand confirmed by the adjudicating commission under the said order. The point of limitation was also tried to be canvassed, but it has been pointed out before us by the learned counsel for the respondent that such point was never alleged before the learned Tribunal and the learned Tribunal did not even record the same. Therefore, it has to be inferred from the said fact that the appellant has abandoned the said question at the point of time. Therefore, at this stage the respondent is estopped from taking such point before us. Accordingly, we do not find that there is any illegality or irregularity in respect of the order so passed by the learned Tribunal and we confirm the same. For the aforesaid reasons, the application and the appeal is dismissed without any order as to costs.
(3.) All parties concerned are to act on a xerox signed copy of the minutes of this order on the usual undertakings.;