2012 (4) TMI 161

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....es which were supplied to soft drinks manufacturers. The said soft drinks manufacturers provide plastic crates to the appellant in which the bottles were ultimately supplied by the appellant. The appellant had availed credit of duty on the plastic crates. The Department s case is that while clearing glass bottles packed in plastic crates supplied by their customers, the appellant did not include the total cost of such plastic crates in the assessable value of their final product. It was alleged by the Revenue that the Central Excise duty, Sales Tax, transportation charges in respect of the plastic crates ought to be included in the assessable value of glass bottles. Accordingly, show-cause notice was issued to the appellant on 30.3.2005 all....

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....value of the final product. However, he has upheld that the demand of duty in so far as the sales tax and transportation charges are concerned. Further, he has observed that since the amount of duty has already been paid , it met the requirement of Section 35 of Central Excise Act, 1944. Further he has observed that the appellant had evaded the said amount of duty and were liable to pay penalty of an equal amount of duty under Section 11AC of Central Excise Act, 1944 Accordingly, the penalty under Section 11AC is reduced to Rs.2,87,743/-. Aggrieved by the said order, the present appeal is filed. 4. The ld. Advocate appearing for the appellant did not press the amount of duty of Rs.2,87,743/- involved on account of inclusion of transporta....

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....tment reiterates the findings of the lower authorities.   6. Heard both sides and perused the records. We find that the adjudicating authority has imposed a penalty of Rs.18,21,106/-under Section 11AC of the Central Excise Act, 1944 even though he has confirmed Central Excise duty of Rs.21,08,849/-. In other words, the duty amount of Rs.2,87,743/- which was paid by the appellant, by including cost of transportation and sales tax paid on crates before issuance of show-cause notice, was not considered by him while imposing penalty of Rs.18,21,106/-. The amount of penalty imposed by the adjudicating authority refers to the amount of duty payable on account of inclusion of the element of excise duty paid on the crates. We also find that....