2009 (5) TMI 761

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....es, 1944]. This removal of goods took place during the period from 4-4-2000 to 6-8-2001. The appellants reversed the credit in their CENVAT account on 15-1-2002 at the instance of the department. Subsequently, on 18-10-2004, the department issued a show cause-cum-demand notice directing the party to show-cause why :- "1. Penalty should not be imposed on them under Rule 173Q of Central Excise Rules, 1944/Rule 25 of Central Excise (No. 2) Rules 2001 read with Section 11AC of the Central Excise Act, 1944 equivalent to the duty so paid should not be imposed upon them, for the reasons mentioned. 2. Interest at an appropriate rate, for not paying duty at the time of removal, should not be charged under Section 11AB for the reasons....

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....ow-cause notice was not duly considered. He further argued that, as the show-cause notice did not contain any proposal for determining or demanding duty under Section 11A of the Act, the demand of duty raised by the original authority required to be set aside as it was beyond the scope of the show-cause notice. The same argument was put forward in respect of the demand of interest under Section 11AB. In the absence of determination of duty under Section 11A(2) of the Act, it was not open to the lower authorities to impose any penalty on the assessee under Section 11AC. It was also argued that, as the entire credit was reversed prior to issue of the show-cause notice, no penalty was imposable. 3. The learned SDR submitted that any pe....

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....the assessee's plea that the order-in-original had travelled beyond the scope of the show-cause notice by confirming demand of duty of Rs. 1,53,394/- and appropriating the payment of this amount towards such demand. The learned Commissioner (Appeals) has held that the original authority determined the above amount as payable by the assessee and that the confirmation of demand is correct and legal. Apparently, this finding of the learned Commissioner (Appeals) purports to dispose of the plea of the assessee. Though the relevant para of the impugned order is not happily worded on this issue, I am of the view that the order substantially meets the requirement of the Tribunal's remand order. The show-cause notice had clearly alleged (a) that th....