TaxTMI 
TaxTMI 
2016 (3) TMI 517
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....otice was issued to the appellant on 7.6.1993 on account of clandestine removal of manufactured goods viz. Nickel Alloy, Tin Alloy and Lead Alloy during the period 1988-89 to 1991-92 to demand duty of Rs. 1,21,07,034.70 and to propose penalty under Rule 9(2) and 173 Q of the Central Excise Rules, 1944. The matter was adjudicated, charge of clandestine removal of dutiable goods was confirmed vide order dated 30.03.1998 and demand proposed in the show cause notice was confirmed and penalty of Rs. 1 crore was imposed under Rule 9(2) and 173Q of the Central Excise Rules, 1944. The said order was challenged by the appellant before this Tribunal, vide order dated 7.12.1999, this Tribunal confirmed the charge of clandestine removal and also upheld....
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...., Zinc and Cadmium Alloys as is same beyond the scope of show cause notice. 3.1 He submits that as the charge of clandestine removal is not contested on merit, therefore, the inputs used in manufacture of their final products which have been cleared clandestinely they are entitled to take cenvat credit thereon as held by this Tribunal in the case of CCE, Coimbatore Vs. S.S. Radiators reported in 2002 (49) RLT 210 (CEGAT-Chennai). 3.2 He also submits that the appellant is entitled to avail benefit of SSI exemption for the period 1989-90 onwards as their clearance during 1988-89 was 81,52,454.13. Therefore, as per notification no.174/86-CE dated 1.3.86 they were entitled for the benefit of SSI exemption as held by this Tribunal in the c....
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....he parties. 6. On careful consideration of the arguments advanced by both the parties, we find that the impugned order has been challenged by the appellant on the following grounds: - (a) The show cause notice proposed to demand duty on the clandestinely manufactured and cleared goods viz. Nickel Alloy, Tin Alloy and Lead Alloy and apart from the three metals mentioned hereinabove, that the demand for Copper, Zinc and Cadmium Alloys was not part of the show cause notice as in the show cause notice, the demand of duty has been proposed against the appellant for the clandestine manufacture and clearance of Nickel Alloy, Tin Alloy and Lead Alloy. In that circumstances, the demand of duty on other alloys namely Copper, Zinc an....
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.... that the quantum of duty has been worked out on the basis of consumption of Sulphur by the appellants, for the period in question with reference to the accounts maintained by the appellants. We find considerable force in the submission of the learned Consultant that the quantum with reference to the applicability of various Small Scale Industries Exemption Notifications applicable to the appellants should have been taken into consideration before quantifying the duty. We find that this has not been done by the adjudicating authority in the impugned order. It was contended before us that if the appellants were given the benefit of various Exemption Notifications as applicable to them under the law, the appellants may not be required to pay ....
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....the various Exemption Notifications and leaving the issue to be decided by the adjudicating authority, we set aside the impugned order and remit the issue for re-consideration by the lower authority as per law in the light of our observations and the contentions canvassed before us, in accordance with law and in the light of the evidence available on record. The appeal is accordingly remanded." We also find that in the case of Collector of Central Excise Vs. Atlas Radio and Electronics Pvt. Ltd. reported in 1989 (39) ELT 123 (Tribunal) against this Tribunal had dealt the issue and observed as under:- "2. On careful consideration, we find no merit in either of the aforesaid grounds advanced by the Revenue. The concessional ....
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....e." (d)We also find that there is no proposal to demand interest in the show cause notice from the appellant moreover under the provisions of Section 11 A B or of Section 11 A of the Act were not in the Statute Book during the relevant period. Therefore, the demand of interest is set aside. (e) We further find that as the appellant has paid duty demanded in the impugned order along with 25% of the duty as penalty, the penalty paid by the appellant is sufficient in the facts and circumstances of the case. 7. With these observations, the following order is passed:- (a) The appellant is entitled to avail cenvat credit on inputs used in clandestine manufactured and cleared goods viz. Nickel, Tin a....