TaxTMI 
TaxTMI 
TaxTMI 
2007 (1) TMI 309
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....ce) was leviable on the goods used captively also the appellant was liable to pay Additional Excise Duty on the DTCWS so manufactured and utilized for captive consumption which they did not pay. Hence, in all 13 periodical show cause notices were issued to the notices demanding Additional Excise Duty on the DTCWS used captively in the manufacture of tyres during the period March 1995 to September 1997. Out of these 12 show cause notices were adjudicated by the Commissioner of Central Excise, Goa vide Order-in-Original No. 14/Commr. Goa/CX/97 dated 31-10-1997 by confirming the amount of duty amounting to Rs. 11,56,86,495/-. Further though a penalty of Rs. 2,93,69,000/- was also imposed on the notices in respect of show cause notice issued on 14-7-1997 demanding duty for the period March 1995 to September 1995, in respect of other 11 show cause notices no penalty was imposed as the Commissioner considered that the matter involved legal interpretation and ends of justice would meet after the duty is paid. The show cause notice issued on 27-10-1997 for the period July 1997 to September 1997 was confirmed by a separate order of Commissioner of Customs vide Order-in-Original No. 01/Commr....
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....neligible for the exemption and accordingly differential duty amounting to Rs. 29,45,491/- was demanded. This show cause notice was adjudicated by the Commissioner, Central Excise Goa vide Order-in-original No. 11/Commr.Goa/CX/97 dated 31-10-1997 confirming an amount of Rs. 29,45,491/- and imposing a penalty of Rs. 1 Lakh. This show cause notice has also been decided by the Commissioner on remand in the present impugned order. The other show cause notice which has also been decided by the present impugned order was issued on 5-5-2000 for Rs. 8,57,33,623/- for wrong availment of the credit of Additional Excise Duty in the manufacture of March 2000 without valid duty paying documents. The Commissioner's order therefore disposes of 26 show cause notices in all. 5. The Commissioner by his impugned order has dropped six show cause notices dated 14-12-1998, 30-3-1999, 28-7-1999, 20-12-1999, 14-12-2000 and 2-4-2001 since they related to period after 2-6-1998 when the exemption from Additional Excise Duty on processed tyre cord warp sheet was restored by Notification 11/98-CE dated 2-6-1998. In respect of three show cause notices dated 29-11-2001, 3-7-2002 and 5-5-2001, Commissioner ....
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....mmissioner of Goa to revisit the question of penalty on remand in respect of these 12 show cause notices. 9. As regards show cause notice dated 14-7-1997 for the period March 1995 to September 1995, the Commissioner has imposed a penalty of Rs. 2,93,68,768/- under Section 11AC in its earlier order which has been reconfirmed in the present order under Section 11AC read with Rule 9(2), Rule 173Q, Rule 210 and Rule 226. It was submitted that this imposition of penalty is patently illegal because Section 11AC was not in existence during the relevant period covered by the show cause notice i.e. 3/1995 to 9/1995. Section 11AC came into effect only from 28-9-1996 and has no retrospective effect as separately held by the Supreme Court in the case of Commissioner of Central Excise, Coimbatore v. Elgi Equipments Ltd. - 2001 (128) E.L.T. 52 (S.C.). It was further submitted that their decision in Impression Prints v. Commissioner of Central Excise, Delhi-1 - 2005 (187) E.L.T. 170 (S.C.) = 2005 (7) SCC 497 (at para 21) has no application because in that case the assessee had not raised this point before the Tribunal not even before the Supreme Court but the Supreme Court in Impression did....
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....tion is that the appellant had made a mis-declaration by declaring the input grey tyre cord fabric as duty paid fabric even though it was nil duty paid item being exempted from excise duty by customs Notification 203/1992. It was submitted that there was a specific CBEC Circular No. 125/36/95 dated 15-5-1995 stating that if an input was exempted from duty then it was equivalent to payment of appropriate duty thereto. This circular was in operation during the relevant period April 1993 to February 1995 and the constitution bench of the Supreme Court in the case of Collector of Central Excise, Vadodara v. Dhiren Chemical Industries - 2002 (139) E.L.T. 3 (S.C.) specifically laid down that this circular was binding on the excise authorities who could not contend to the contrary. This circular was withdrawn and rescinded only in 2002 which is long after the expiry of the relevant period and therefore this withdrawal cannot justify the imposition of penalty in respect of the period which was 7 years earlier. Besides in the first round of proceedings before the matter went to the Supreme Court the amount of penalty imposed by order-in-original of Commissioner dated 31-10-1997 was Rs. 1 La....
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.... additional duty of excise leviable under the said Additional duty of Excise Act has been paid @ Rs. 4/Kg. in the case of Nylon tyre cord fabric. Therefore the wording used are not appropriate duty but the duty @ Rs. 4/Kg. and once this duty was not paid the question of claiming exemption does not arise and the same establishes their intention to evade duty by mis-declaration. 14. We have considered the submissions. We are not going into the excisability of the product DTCWS and the demand of duty thereon as the appellant is not challenging the same in the present proceedings. We are therefore confining ourselves to imposition of penalty in respect of various show cause notices adjudicated by the Commissioner by his impugned order. 15. We find that it is an admitted fact that in respect of 12 show cause notices issued on 26-4-1996, 28-5-1996, 4-6-1996, 31-7-1996, 19-8-1996, 26-9-1996, 25-10-1996, 26-11-1996, 12-2-1997, 24-4-1997, 4-7-1997 and 27-10-1997 no penalties whatsoever was imposed by the Commissioner in the first round of proceedings and non imposition of penalty was not challenged by the department either before the Tribunal or before the Apex Court. In view of....