TaxTMI 
TaxTMI 
2003 (6) TMI 442
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.... containing additional particulars and submissions, which had been received by this Bench on 17-3-2003. 2. To briefly recapitulate facts relevant for considering admissibility of the application, the applicant hold Central Excise Registration No. 1/92. They are engaged in the manufacture of aluminium pressure cookers and parts thereof, and wheel skins (for export only), respectively falling under sub-heading No. 7615.20 and 7615.10 of the First Schedule to the Central Excise Tariff Act, 1985. On charges of clearance without payment of duty of spares to their godown at Bangalore and of components to their Hosur Unit, and 13 other issues involving nonpayment of appropriate duty, subject SCN had been issued to the applicant proposing to demand totally a duty of Rs. 2,19,05,152/-. This was subsequently confirmed by the Commissioner in his O-I-O No. 4/99 dated 17-3-1999, read with corrigendum dated 6-4-1999, for an amount of Rs. 2,04,61,531/-, apart from imposing penalties on the applicant and their Senior Vice President (Operation) and demanding interest, under the provisions cited therein. 3. The applicant had filed an appeal before the Hon'ble CEGAT who upheld the dut....
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....ecide whether this was a fit case for imposition of penalty......." 5. In para 15 of the Statement of Facts and grounds of appeal (statement for short) annexed to the application filed, it has been submitted that the following issues are restored to the original SCN position, partly by the Tribunal vide its final Order dated 18-1-2000 and partly by the Apex Court vide its final Order dated 3-12-2002, for adjudication afresh by the Commissioner, "(i) The issues on merits which had been referred above involving a duty of Rs.22,76,736/- and the differential duty of Rs. 15,22,657/- under Rule 57E.(ii) The entire aspect of imposition of penalty u/s 11AC and Rule 173Q as alleged in the show cause notice." (However, the above amount of Rs. 22,76,736/- appears to be an apparent error. As per para 13 of the Statement, applicant had agitated before CEGAT on five issues on which the duty amounted to Rs. 23,67,240/-. On the other hand, the Hon'ble CEGAT had observed in its order, as stated supra, that the applicant had filed appeal on four issues which they had remanded back to Commissioner for de novo consideration. The duty amount involved in such issues worked out to Rs. 23,40,073/-....
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....in the light of para 2 read with para 14 of the order dated 18-1-2001 of Hon'ble CEGAT as per which only four issues had been agitated by the applicant and that they had also decided only on the said four issues, in which the aforesaid issue relating to advertisement and sales promotion expenses does not figure. The Bench had also desired to know whether the eligibility of applicant to Modvat credit of Rs. 15,22,657/- sought for in the application was subject matter of appeal before the Apex Court. The applicant's counsel contended that invokability of extended time limit was subject matter of appeal with the Supreme Court and hence, by implication, the said judgment would require de novo decision on the eligibility of Hosur Unit for Modvat credit of Rs. 15,22,657/-. Finally, the Bench also queried as to whether the admitted duty liability of Rs. 9,84,475/- related to shortage of final product manufactured by the applicant, or of inputs procured by them, and if due only on the inputs, whether the demand for the same would be demand of duty as required under the definition of the term 'case' u/s 31C of the Central Excise Act, 1944. The counsel mentioned that the amount related to sh....
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....he applicant has exhausted other legal remedies available to them and that they have come to Commission to escape penal levies and that an application cannot be made at the stage of de novo consideration. The Bench is not persuaded to agree with these pleas. The very object of the Commission is to deal with applications of assessees seeking immunity from penal levy, subject to their admitting true and complete duty liability. Hence an approach to the Commission to escape penal levies is not shut out, rather is intended subject to the above observation. Further, as mentioned by the applicant, in terms of Section 32E 'an assessee may, at any stage of a case relating to him make an application.' Therefore, the applicant has a right to approach the Commission for immunities even at the stage of de novo consideration and not necessarily before issue of an Order on a SCN. The Respondent Commissioner's representative has also conceded that the applicant satisfies all other conditions to file an application before the Commission. 12. In the instant case, the issues raised in the SCN and confirmed by the OIO of the Commissioner have been been remanded piecemeal by two orders of diff....