TaxTMI 
TaxTMI 
2015 (5) TMI 1024
X X X X Extracts X X X X
X X X X Extracts X X X X
....wever the appellant is not including the value of bought out flaps in the assessable value of tyres and tubes, cleared as 'set of tyres' for the purpose of discharging excise duty. The appellant is taking permission under Rule 51A of erstwhile Central Excise Rules, 1944 from time to time, however one permission letter bearing F. No. V CH 40 (10) 72/TB/92/Pt-1, dated 17-8-1999 contains condition No. (10) i.e. "value of flaps should be included in the assessable value of tyres and tubes at the time of clearance." The appellant without taking note of such condition kept on clearing the tyres and tubes without including the value of flaps, therefore investigation was carried out, during which statement of Shri R.M. Kulkarni, authorized signatory was recorded on 16-5-2000 under Section 14 of Central Excise Act, 1944. Consequent to the investigation, the appellant paid the Central Excise duty of Rs. 4,04,487/- for the period from Aug 1999 to November 2000, however appellant did not pay Central Excise duty of Rs. 1,64,508/- for the period December, 2000 to 22-2-2001. A show cause notice bearing No. PREV/VII/GP-1/BKT/5-2000 dated 6-2-2003 was issued proposing : (a) Recovery o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cation order. He submits that appellant has defended the case right from adjudication stage uptill the stage of this appeal on merit. Therefore the amount paid by them must be treated as paid under protest. In view of this fact order of the Commissioner (Appeals) inasmuch as confirmation of demand of Rs. 4,04,487/- on the ground that the same was not paid under protest is not legal and correct. He submits that only issue before this Tribunal is that confirmation of demand by the ld. Commissioner (Appeals) on the ground that the same was not paid under protest by the appellant is correct or otherwise. As regard merit of the case ld. Commissioner (Appeals) categorically held that the value of flaps is not includible in the assessable value of tyres and tubes. It is his submission that once the ld. Commissioner (Appeals) held that value of flaps is not includible in the assessable value of the tyres and tubes, there is no other option except to drop the entire demand on the value of flaps. He submits that present case is against demand proceedings and not case of refund. The refund will arise only consequent to the outcome of this appeal proceedings. Therefore ld. Commissioner did not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it is clear that the ld. Commissioner held that the value of flaps is not includible in the assessable value of tyres and tubes. This part of the order was not challenged by the Revenue therefore the same attained finality. Since both the demand i.e. Rs. 4,04,487/- and Rs. 1,64,508/- were covered under show cause notice and the appellant have been challenging these amounts right from the show cause notice stage, payment of Rs. 4,04,487/- shall be deemed to have been made under protest. Moreover, once the ld. Commissioner (Appeals) has taken clear stand that value of flaps is not includible in the assessable value of tyres and tubes entire demand proposed in the show cause notice and subsequently confirmed in the adjudication order must be dropped. For ease of reference extract of the findings of the ld. Commissioner (Appeals) is reproduced as under : 6. In the instant case the Appellants are the manufacturer of the tyres and tubes falling under Chapter 40 of the CETA, 1985. They used to bring flaps from outside and dispatched the same along with tyres and tubes for which necessary permissions was granted under Rule 51A of the Central Excise Rules, 1944 by the Commissi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... penalty and demand of interest. Since the Appellant have paid Rs. 4,04,487/- without any protest, I have no alternative but to confirm the same. The impugned OIO is modified to the above extent. From the above findings, we find that it is absolutely absurd that in one hand it was held that value of flaps is not includible in the assessable value of the tyres and tubes and on the other hand the demand of duty on such value of flaps has been confirmed. We are of the view that once it is held that value of flaps is not includible in the assessable value of tyres and tubes, the demand of duty on such value of flaps would not sustain irrespective of fact whether such duty was already paid either under protest or otherwise. The entire proposal of demand and confirmation thereof by the adjudicating authority is on the root cause of includibility of value of flaps in the assessable value of tyres and tubes. When the ld. Commissioner (Appeals) held that value of flaps is not includible, such root stands cut and therefore every proposal which is based on such root shall not stand. Our aforesaid view get support from the judgment in the case of Modern Denim Ltd. (supra) wherein Hon'ble Gu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m with further liabilities after limitation period is over, is not justified and cannot be maintained and sustained. Therefore, the proceedings started by issuance of show cause notice dated 10-9-2004 and tried to be fortified or enhanced by corrigendum are held to be inappropriate and illegal. Thus, demands and other proposed cause of actions are barred by limitation as provided under provisions of Section 11A of Central Excise Act, 1944." 5. After considering the facts and the findings of the adjudicating authority, the Tribunal arrived at its own conclusion as under : "It can be seen from the above reproduced findings of the lower adjudicating authority that he has clearly held that show cause notice dated 10-9-2004 as well as corrigendum dated 17-6-2005 and 28-7-2005 were without any authority of law and inappropriate and illegal. It is also his finding that the demands and other proposed causes of action are barred by limitation as provided under provisions of Section 11A of Central Excise Act, 1944. It is to be seen that the Revenue authorities have not filed any appeal against the said Order-in-Original nor they have filed any cross objection against s....