Decided on January 19,2015

Mideast Integrated Steels Ltd. Appellant
Commissioner Of Central Excise, Customs And Service Tax Respondents


D.M. Misra, Member (J) - (1.)THIS is an Application seeking waiver of predeposit of duty of Rs. 26.35 crore and equal amount of penalty imposed under Section 11AC of the Central Excise Act, 1944, read with Rule 25 of the Central Excise Rules, 1944.
(2.)AT the outset, ld. Advocate for the Applicant submits that the Applicant is an 100% EOU engaged in the manufacture of Pig Iron falling under Chapter 72 of CETA, 1985. A Show Cause -cum -Demand Notice was issued to them on 29.04.2013, alleging short payment of duty, on account of removal of pig iron and pig iron scrap of 7884.34 MT and 1957 MT during 2008 -09; 86363.016 MT and 7274.000 MT during 2009 -10; and 12.457 MT during 2010 -11, respectively. He has further submitted that the demand had been confirmed only on the basis of difference between the production figures shown in the Balance Sheets and that mentioned in their respective ER -2 returns, for the relevant periods. He submits that a Show Cause Notice was also issued for the period, 2008 -09, by DGCEI, and adjudicated by the ld. Commissioner, vide Order No. CCE/BBSR -I/07/2013 dated 18.03.2013. Aggrieved by the said Order they had preferred an appeal along with stay application before this Tribunal, vide Appeal No. E/A/70733/13. While disposing their stay application after taking into consideration the payments made, the Tribunal vide Order No. SO/76720/2014 dated 20.11.2014, had waived the predeposit of the balance dues adjudged and stayed its recovery during the pendency of the appeal. He also submits that they were not given an effective hearing and the Order had been passed ex -parte. Thus, they could not explain before the Adjudicating Authority about the error in the Balance Sheet. However, he fairly accepts that even though the Show Cause Notice was issued to them on 29.04.2013, yet, they had neither filed any reply to the Show Cause Notice, nor any extension of time was sought for filing the reply to the Show Cause Notice. Explaining the difference in the production in two sets of their own records, he submits that since an error had been crept into the Balance Sheet for the financial year, 2009 -10, in recording the figures of production, there is an apparent difference in the production figures. In support of his contention that there was an error in the Balance Sheet for the period, 2009 -10, he has filed the Statutory Auditor's Certificate dated 05.12.2014, supported by an affidavit. He prays that the Applicant had incurred huge losses due to stoppage of mining activities, and any deposit at this stage would cause undue hardship to them. He prays that the matter may be remanded to the adjudicating authority for fresh decision.
Ld. AR for the Revenue reiterated the findings of the ld. Adjudicating authority. He submits that the Applicant had neither filed any reply to the Show Cause Notice nor submitted any document(s) before the adjudicating authority. It is his submission that the Balance Sheets vis   -vis the Auditors Certificate now produced need to be scrutinized in detail, before accepting the claim of the Applicant. He has no objection in remanding the case to the adjudicating authority, however, to avoid further delay a time frame be fixed for the adjudication process.

(3.)AFTER hearing both sides, we find that the Appeal itself could be disposed off, at this stage. Accordingly, after waiving the requirement of predeposit and with the consent of both sides, we take up the Appeal for disposal.

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