TaxTMI 
TaxTMI 
2015 (10) TMI 1290
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....be entitled to cum duty benefit and accordingly this Tribunal remanded to the Commissioner for determination of the above two aspects after considering the material to be produced by appellant. Consequent to the said direction of the Tribunal, impugned order has been passed wherein after extending the benefit of cum duty, the duty amount gets reduced to Rs. 46,22,322/-. Further, the Commissioner found that the appellant would be eligible for modvat credit of Rs. 43,59,689/-. Thus the effective duty required to be paid by the appellant would be Rs. 2,62,633/-. Commissioner in the impugned order confirmed the said amount of Rs. 2,62,633/-. Further interest under Section 11A was confirmed and a penalty of Rs. 1 lakh was imposed upon the assessee under Rule 173Q of the Central Excise Rules, 1944. Aggrieved by the said order, the appellant are before us. 2. Ld. counsel for the appellant submitted that they are not disputing the duty liability. In fact, immediately within few weeks of passing of the second order, they have deposited the amount of Rs. 2,62,633/- on 31.05.2005. However, they are disputing the interest liability and penalty imposed. Ld. counsel submitted that the peri....
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....e benefit of cum duty as also examining the documents relating to the modvat credit and redetermining the quantum of duty payable. Ld. AR further submitted that in view of the said position, the order of the Commissioner was not set aside and the reasoning followed in the case of Blue Star Ltd. (supra) in second para 17 quoted by the counsel is not applicable. On the other hand, the first para 17 of the said judgment of the Hon'ble High Court makes it very clear that in the facts and circumstances of the present case, interest would be payable with reference to first adjudication order and not with reference to the present impugned order i.e. second order. As far as the imposition of penalty is concerned, it was submitted that the first two case laws quoted are not relevant as these do not pertain to the Central Excise Law but to other laws. The concept of manufacture with reference to the Central Excise Tariff particularly, the new Tariff which was introduced in 1986 is not discussed in the first two case laws. It was further submitted that Tribunal and other authorities have been taking consistent view that the corrugation amounts to manufacture and therefore, the appellant w....
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.... (1) shall not apply to cases where the duty becomes payable on and after the date on which the Finance Bill, 2001 receives the assent of the President." To our mind, Explanation 1 is relevant as in the present case duty as been reduced. 4.1. The Tribunal in the said remand order directed as under:- 5. Once it is held that the corrugation amounts to manufacture, the appellant would be entitled to take Modvat credit of the duty paid on the inputs used in the manufacture of these goods (see Bharat Wagon & Engg. v. CCE - 2001 (131) E.L.T. 681 (Tri.) = 2001 (44) RLT 557 and other such decisions), subject to the requirement contained in rule relating to modvat credit of evidence being produced on payment of duty on inputs which it utilised in the manufacture of the final product. These decisions are clear, that the procedural requirements such as filing of declaration would not in the way of taking credit in situation such as this where the manufacturer did not initially pay duty liability arising as a result of departmental interpretation. The matter will have to be remanded. 6. The other contention that duty has been demanded on the sale price of the corrugated sheets and ....
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....able. In the instant case, therefore, though there was original order passed on 14th June, 1993 that was set aside on 14th July, 2000. The matter was before the A.O., for fresh determination on which an order came to be passed on 22nd March, 2002 and consequently the duty came to be ascertained on 22nd March, 2002. Duty was paid on 17th July, 2002. Once the duty was ascertained on 22nd March, 2002 no interest could have been demanded under sub-section (1) of Section 11AA in view of sub-section (2) as inserted in Section 11AA on 11th May, 2001." 4.3. It is very clear from the Tribunals order that duty liability was upheld. The order of the Commissioner was not set aside, the matter was sent back only for redetermination keeping in view the cum duty benefit and extending the benefit of modvat credit. In view of the said factual position and keeping in view the Explanation 1 of the Section 11AA as also the observation of the Hon'ble Bombay High Court in first para 17 quoted above, we are of the view that the appellant is required to pay interest under Section 11AA on the redetermined duty of Rs. 2,62,633/- with reference to the date of passing of the first order and not with re....