ORDER
V.K. Jain, Member (J)
1. We have heard Shri B.J. Mookherjee, Ld. Advocate for the appellants. At the outset, be submits that the case is barred by limitation as the extended period cannot be invoked in this case. He further submits that the Bin Card is a private document and nowhere the same has been prescribed that it should be initimated to the Department. As such he submits that the prima-facie, there is no case of the Department.
2. We have also heard Shri J.R. Madhiam, Ld. JDR for the Revenue. He draws our attention to the order of the adjudicating authority. He specifically points out the findings of the Commissioner that in the show cause notice a shortage of 587.955 MT of Ferro Silicon has been alleged in comparison to Bin Card vis-a-vis RG 23A Part I. In the show-cause notice, the closing balance in the Bin Card as on 31.3.97 is shown as 96.673 MT. On verification of the records, it is noticed that the actual closing balance in the Bin Card should be 582.936 MT. Even then, there is a shortage of 101.656 MT of Ferro Silicon (HG) in the quantity mentioned in Bin Cards in comparison to the quantity recorded in the RG 23 A Part I. Ld. JDR also draw our attention to Rule 571 (2) that if any inputs on which credit has been taken are not fully accounted for as having been disposed of in the manner specified in this Section, the manufacturer shall upon a written demand made by the Assistant Commissioner of Central Excise pay the duty leviable on such inputs within three months from the date of receipt of the notice of demand.
3. Ld. Advocate submits that the words used in this Rule is the Assistant Commissioner whereas the show-cause notice has been issued by the Commissioner.
4. Ld. JDR submits in respect of the above contention of the Ld. Advocate, that under Rule 6 of the erstwhile Central Excise Rules, Commissioner has been empowered to perform all or any of the duties or exercise all or any of the power assigned to any Officer under these Rules. There is an obligation on the manufacturer under erstwhile Rule 173 G(5) to furnish the proper Officer a list in duplicate of all account manufacture in written prepared by him (whether the same are manufactured or prepared in pursuance of this Rule or not) in regard to the production manufacture storage, delivery or disposal of the goods including the raw material.
5. After hearing from both sides, we find that the appellant has not made out a case for total dispensation of duty and penalty. The Commissioner while adjudicating the case has submitted a number of decisions why the extended period is invocable in this case. Since the issue is debatable, the same can be taken up in details at the time of final hearing. The total amount of duty and penalty involved is more than Rs. 13,00,000. The appellants are directed to make payment of Rs. 3,00,000 towards duty within a period of eight weeks from today. On deposit of the above, the rest amount of duty and penalty shall remain dispensed with.
6. Matter to come up for ascertaining compliance on 5th January, 2005.