Anil Choudhary, Judicial Member.

1. The Appellant Company most respectfully submits as under:-

That M/s R.P. Castings Private Limited, Behror, Rajasthan, (hereinafter called the Appellant) was engaged in the manufacture of Ingots. The duty was determined at Rs. 6,00,000/- per month u/s 3A (compounded levy) of the Central Excise Act read with Rule 96ZO of the Central Excise Rules 1994. The period involved is September, 1997 to March, 1998.

2. That the undisputed fact are that manufacturing unit remained closed from 02.09.1997 to 11.09.1997 due to disconnection of power. On 12.09.1997, th power was reconnected and again got disconnected on 30.09.1997. There is a report of lineman (of Elee Supply Co.) saying that the power has been disconnected on 30.09.1997 to 6.40 P.M. Since the power was disconnected at 6.40 PM on 30.09.1997, the Appellant delivered a letter on 01.10.1997 to the Assistant Commissioner, Central Excise, Jaipur and also delivered a copy to Superintendent, Central Excise and all these letters are acknowledged.

3. That notwithstanding this, a SCN dated 09.09.1998 had been issued seeking to raise a demand of Rs. 41,12,568/-(for September 97 to March 98).

4. That the Appellant contested the SCN and submitted a reply, which was unsigned, and, therefore, no cognizance was taken by the Commissioner and the demand confirmed vide OIO dated 01.04.1999.

5. That the Order-in-Original was served after a long delay and therefore, the appeal filed before this Hon’ble Tribunal, was dismissed as time barred, in the earlier round.

6. That the Appellant filed an appeal before the Hon’ble Rajasthan High Court, who set-aside the Order of this Hon’ble Tribunal allowing the appeal and directed this Hon’ble Tribunal to hear the same on merit. The appeal has come up for hearing before this Hon’ble Tribunal for first time on 30.09.2016 and the Order in Original was set-aside directing the adjudicating authority to adjudicate afresh after giving adequate opportunity to the Appellant.

7. That the pursuant to remand a reply dated 04.11.2016 was filed before the learned Adjudicating Authority. The learned Adjudicating Authority vide Order-in-Original dated 23.01.2018 was pleased to give partial relief by giving the benefit for the period 02.09.1997 to 11.09.1997, but, however, did not grant relief for the period from 30.09.1997 to 31.03.1998 on completely frivolous grounds that (in order-in-original) observing that the Appellant has not disputed the duty for the period from 01.09.1997 to 31.03.1998,except for the period of closure of their factory due to disconnection of power supply from 02.09.1997 to 11.09.1997 (reproducing the reply of the Show Cause Notice by the Appellant which clearly shows tht the Appellant has sought deduction of demand of Rs. 36,00,000/- (out of Rs. 42,00,000/- for the period 01.10.1997 to March, 1998). Thus, committed a mistake of fact.

8. That after passing of the first Order-in-Original dated 01.04.1999, since the demand was not paid, the Department has auctioned the entire unit of the appellant valued at Rs. 15-20 Crores (approx) at pittance amount of Rs. 3,01,00,000/- (para 12.3 of Order-in-Original). The Department is still withholding the entire amount.

9. That in the Order-in-Original dated 23.01.2018, the learned Adjudicating Authority has confirmed the demand of Rs. 39,12,586/- and also imposed a penalty of Rs. 40,00,000/- under Rule 209(1) of the erstwhile Central Excise Rules, 1994 despite the Hon’ble Supreme Court having clearly held, in the case of Shree Bhagwati Steel Rolling Mills Vs. CCE Manu/SC/1341/2015= 2015 (326) ELT 209 (SC), that neither the interest nor penalty are payable/imposable.

10. In view of the above, the appeal is prayed to be allowed with direction to the Department to refund the balance amount, which they are withholding for more than five years.

11. The Ld. AR have reiterated the impugned order.

12. Having considered the rival contentions, we find that it is an undisputed fact that power connection of the appellant unit was never restored during the period 01.09.97 to 31.03.98, after the disconnection on 30.09.97.

13. Accordingly we hold that the Ld. Commissioner have erred in upholding the duty liability for the period 01.10.97 to 31.03.98. Thus, the appeal is allowed and the impugned order is set aside. We also hold that no interest and penalty

was imposable in view of Ruling of Hon’ble Supreme Court in Bhagawati Steel Rolling Mills (supra). 14. We further note, that the unit was auction sold pending litigation at Rs. 3.10 crore, the auction sale proceeds are in the nature of pre-deposit u/s 35F of the Act. The appellant is entitled to consequential benefit, including refund of pre deposit alongwith interest as per Rules. The Refund should be granted forthwith, within 30 days of receipt of copy of this order.