TaxTMI 
TaxTMI 
2009 (10) TMI 629
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....n terms of Section 4(4)(d)(ii) of Central Excise Act, 1944 when the Hon'ble Apex Court has held that one cannot go by general implication that wholesale price would always mean cum duty price particularly when the assessee had cleared the goods on the basis of exemption notification? (ii) Whether remanding of the case by the CESTAT to the adjudicating authority for the consideration of modvat benefit is correct when a clear finding has been given in the Order-in-Original No. 5/2001 dated 27-6-2001 in this regard and Modvat credit has already been allowed in Para. 1 of the Order-in-Original by the adjudicating authority on the basis of available records, after verification?" 2. Learned Senior Central Government Stand....
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....d a declaration under Notification No. 13/92 (N.T.), dated 14-5-1992 as amended classifying their product (1) Core spun yarn under 5604.90 (ii) cotton yarn under 5604.10 and (iii) Rubber thread under 5604.10. The assessee had declared to the department that they were manufacturing three products namely cotton core yarn, cotton yarn and rubber yarn. Under what heading the cotton yarn manufactured by the assessee is to be classified was the dispute. The Original authority, after taking samples, classified the goods manufactured by the assessee under subheading 5205.11, rubber thread under 4007.00 and demanded duty of Rs. 1,26,88,422/- with a penalty of Rs. 75,00,000/- under Rule 173Q and interest under Section 11AB with effect from 28-9-1996.....
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.... counsel for the appellants. 6. Admittedly, in this case, in respect of classification, no appeal can be filed before this Court, as per the provisions of the Act. The Tribunal, after considering the entire set of facts and available materials and also the expert opinion, has come to the conclusion that the modvat credit would come under the heading 5205. In view of the fact that the dispute is a bona fide dispute, the Tribunal deleted the penalty imposed by the lower authorities. The Tribunal has held that the assessee is entitled to the benefit of Section 4(4)(d)(ii) of the Act which was obtained during the relevant period. As regards the Modvat benefit, the Tribunal was of the opinion that it will be open to establish their claim w....