2016 (11) TMI 9

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.... fourth time. The learned advocate for the appellant has given a chronological sketch of the events. After having gone through facts on record and the chronology sketch filed by the learned advocate, the following facts emerge: (i) The show-cause notice (SCN) dated 2.8.2002 was issued to the appellants proposing the demand of duty of Central Excise of Rs. 81,60,716/-. (ii) Against above show-cause notice, Order-in-Original No.5/2003-BNG.II dated 31.3.2003 was passed by the Commissioner, whereunder duty demand of Rs. 46,00,500/- was confirmed and penalty of Rs. 56,00,500/- (inclusive of a penalty of Rs. 10 lakh under Rule 173Q) was imposed. (iii) Against above order dated 31.3.2003 of Commissioner, the appellant earlier came to the Tribunal and Tribunal vide its Final Order No.916-917/2003 dated 8.7.2003 remanded the matter for reconsideration. (iv) Commissioner of Central Excise vide his de novo Order dated 30.12.2003 reconfirmed the demands as per the earlier Order-in-Original dated 31.3.2003. (v) Against the above de novo order dated 30.12.2003 passed by the Commissioner of Central Excise, the appellant filed appeal before the Tribunal. The Tribunal passed Final order N....

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....s filed CEA No.57/2012 before the Hon'ble High Court of Karnataka and Hon'ble High Court of Karnataka vide its order dated 6.12.2013 remanded the matter to the Tribunal for fresh consideration, keeping in mind the observations made in this order . (Viii-A) The matter now is for consideration before this Tribunal as per the remand directions of Hon'ble High Court s above order dated 6.12.2013. 5. The last proceedings in this matter has been before the Hon'ble High Court of Karnataka, where the judgment dated 6.12.2013 (CEA No.57/2012) was passed. This order is very comprehensive one. In order to give more clarity to the background of the case, it is appropriate to quote Para 2 of the said judgment dated 6.12.2013. The Hon'ble High Court in para 2 observes as under: "2. The facts are not in dispute. The assessee is a private limited company, undertaking the manufacturing activity on job work basis for M/s. Pfizer Limited. They are also manufacturing and selling the said formulations to M/s. Smithkline Beecham and were filing classification lists as also pricelists from time to time as applicable during the relevant period and were clearing the goods on payment of appropriate dut....

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....iew that the contention of the assessee i.e., entitlement of the benefit of reduced penalty as provided in the proviso of Section 11AC is untenable as the High Court has directed the Tribunal to decide the case in accordance with law and as per the judgment of the Supreme Court in Dharamendra s case, where it is held that the penalty payable is equal to the duty and there is no discretion left to the authority to reduce the penalty. Aggrieved by the said order, the present appeal is filed." 5.1 The Hon'ble High Court in the judgment dated 6.12.2013 inter alia in para 4 notes that the substantial questions of law for their consideration are as under: 1. Whether the assessee is not entitled to the benefit of the proviso to Section 11AC of the Act, if the payment of penalty as determined is paid within the time stipulated therein? 2. Whether the assessee is not entitled to the adjustment of excess tax paid towards liability of reduced penalty? 5.2 The Hon'ble High Court in para 7 of the judgment sets aside the Tribunal s order Nos.310 & 311/2012 dated 9.5.2012 and remands the matter to Tribunal for fresh consideration, keeping in mind the observations made by the Hon'ble High Co....

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....y the Hon'ble High Court, the appellant is before this Tribunal. The learned advocate for the appellant, based on the written submissions, inter alia states as follows: i. Net duty liability in the worst scenario is Rs. 20,19,980/-. ii. There has been an excess payment of duty of Rs. 21,96,572/-. iii. There has been an excess payment of Rs. 1,76,592/-. iv. Payment made in 2004 towards pre-deposit is Rs. 10,00,000/-. v. Other payments made is Rs. 12,71,180/-. vi. Net excess payment works out to be Rs. 22,71,180/-. vii. The duty liability confirmed by Tribunal on account of various charges other than undervaluation is Rs. 20,,19,980/-; 25% penalty on this duty liability works out to Rs. 5,04,995/- plus Rs. 2,00,000/- reduced penalty imposed stands paid by above deposits. viii. With regard to the interest liability, the table/chart below filed before the Hon'ble High Court of Karnataka indicates that there is no interest liability if the excess in the respective years is taken into account for the purpose of calculating the duty. Table: Details on Demand and Excess sought to be adjusted 1997-98 1998-99 1999-2000 2000-2001 2001-2002 Total Clandestine removal ....