TaxTMI 
TaxTMI 
2010 (6) TMI 544
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....roceedings, the Commissioner confirmed the same liabilities against the assessee. Disposing the appeal filed by the assessee vide Final Order No. 1398 &. 1399/2006, dated 30-8-2006 [2007 (207) E.L.T. 573 (Tribunal)], the Tribunal sustained the order of the original authority except the duty demand towards clandestine clearances. TCPL had raised the plea that the Commissioner had wrongly denied assessment of goods clandestinely cleared by it in terms of the formula approved by the Apex Court in Ujagar Prints case. The impugned order was passed contrary to the directions of the Tribunal. Vide the Final Order, the Tribunal held that the Commissioner's decision to demand differential duty was not sustainable. The Tribunal set aside the demand and penalty under Section 11AC on this account. It was held that duty liability had to be recalculated in the light of the principles enunciated in Ujagar Prints case. It was ordered that "for the limited purpose of re-computation, we remand the matter to the original authority. If duty had been paid in excess, the same is liable to be refunded in accordance with law". As regards the inapplicability of Section 11D as an alternative provision to de....
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.... cleared to the loan licencees (principal manufacturer) on payment of duty was never in dispute during the proceedings. The appellants had computed the duty liability on its own and recovered the same from the principal manufacturer. The duty liability on these clearances was not subject matter of appeal in the present case. If at all any excess duty was paid, the proper course to get back the same was to file a refund claim under the Act. Therefore, adjustment of excess duty paid on these clearances towards any other liability did not arise. 3. The appellants had in their reply to the Show Cause Notice accepted the duty liability of Rs. 21,08,073/- on clandestine clearances. In the first round they were willing to pay the same and had sought a lenient view as regards penalty. It was only before the Tribunal, that TCPL had raised the question of reassessment followirg Ujagar Prints formula for the first time. As the assessee had right to raise an issue for the first time at the appeal stage, the department had the same liberty to recover an amount which had been collected as duty from the loan licensees/customers and retained with them by citing relevant statutory provision....
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.... Commissioner. In passing the impugned order, the Commissioner accepted the working furnished by the appellants but he refused to adjust the excess duty already paid for the reason that the excess payment pertained to clearances made under proper invoices. The appellants challenged this finding on the ground that the Commissioner had wrongly arrived at the conclusion that there had been two clearances, one under original invoices and another under parallel invoices. This plea was clear from the fact that there was only one commercial invoice raised by the appellants and sent to the customers. This invoice showed the total quantity of the goods dispatched and received by the customer. Moreover, the department did not have a case that the customers of the appellants had received two quantities of the goods, one under original invoice and another under parallel invoice. Moreover, in the initial Order-in-Original No. 5/2003 dated 11-4-2003, the adjudicating authority had deducted the duty paid under original invoices which showed that the department accepted that the quantity shown in the parallel invoice included in the quantity mentioned in the original invoice. Therefore, the liabil....
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....[1989 (41) E.L.T. 360 (S.C.)]; and Tribunal decision in the case of Hira Cement v. CCE, Raipur [2000 (116) E.L.T. 580 (Tri.)] in support. The subject issue had been raised before the Tribunal in the earlier proceedings and considering the same, the Tribunal had directed the Commissioner to re-compute the assessable value on all goods manufactured on job work basis. Revenue cannot reassess only clearances under a particular set of invoices and refuse to reassess clearances under the remaining invoices when all the invoices pertained to the same period. In paragraph 22 of the impugned order, the Commissioner admitted that the Tribunal had accepted the contention of the appellants that the duty liability in respect of the entire quantity cleared by the appellants had to be reassessed. It was well settled law that where there were excess payment of duty on certain clearances and short payment in certain other clearances, adjustment of excess duty paid against the duty short paid was permissible. If there was any excess payment still, the assessee was entitled for refund. They relied on the following case laws :- (i) Collector of Central Excise, Hyderabd v. Divya En....
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....r made by the appellants in this regard, the Tribunal ordered re-computation of the duty liability on the relevant clearances on the basis of Ujagar Prints formula instead of the sale price of the principal manufacturer adopted for payment of duty. The impugned order has been passed in accordance with the remand directions contained in the Final Order No. 1398 & 1399/2006 dated 30-8-2006 of the Tribunal. 6.1 The Commissioner has worked out the duty liability based on the cost construction method at Rs. 9,89,248/- and imposed equal penalty under Section 11AC of the Act and imposed another penalty of Rs. 15,00,000/- under Rule 173Q Of CER, 1944/Rule 25 of CER, 2001 for violation of various rules involved. He has also demanded an amount of Rs. 14,66,025/- under Section 11D of the Act being the net excess duty collected from the customers of the assessee and not paid to the Government. 6.2We discuss the two demands impugned and the appeal as follows. (i) As regards the demand of Rs. 9,89,248/-, the appellants have challenged the same on the ground that during the same period it had paid excess duty on such goods on the basis of sale price of M/s Pfizer Ltd., the prin....
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....ssioner vide Order-in-Original No. No. 5/2003 BNG. II dated 31-3-2003/11-4-2003. We find that the Commissioner recorded the following submission of TCPL and his finding on the same in his order dated 30-12-2003/9-1-2004 in paragraphs 18 & 34 respectively. "18. M/s. TCPL, Bangalore have submitted that the differential Central Excise duty calculated on the basis of the cost construction method by applying the principle as laid down by the Apex Court in Ujagar Prints case works out to only Rs. 50,884.47 as against the differential duty of Rs. 24,55,273/- quantified and confirmed in the Order-in-Original. In support of their calculation of the differential duty, they furnished copies their commercial invoices and work sheets and finally stated that the demand made in the OIO is sustainable only to the extent of Rs. 50884.47" "34. Another contention of M/s. TCPL, Bangalore, that it is open to them to make a claim for reassessment of the entire clearances and calculate the differential duty is totally out of context in the instant case in as much as the issue on hand is not a case of reassessment but relates to demand of duty on the outright clandestine clearances, with a....