TaxTMI 
TaxTMI 
2017 (10) TMI 134
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....rity, the appellants preferred appeals before the Tribunal. This Tribunal, after hearing both sides, remanded the case of the appellant M/s Aero Dynamics (P) Ltd. for re-quantification of the demand after extending the benefit of cum-duty price to the appellant; confirmed penalty on other appellants but reduced the same and disposed their appeals. In the de novo adjudication, the Commissioner confirmed the duty and directed recovery of interest on the same. Hence, the present appeal. 3. Ld. Advocate Sh. Devan Parikh Advocate for the appellant has submitted that in the demand notice the product had been classified under Chapter 84.79 of Central Excise Tariff Act and the duty was confirmed under the said sub heading. It is his contention that before levy of the duty it is to be ascertained, whether the product is marketable and hence excisable. It is his contention that they have made out a case that these items are neither marketable nor excisable hence, no duty is required to be paid. It is his contention that in the meantime issue of classification of the items in question came to be decided by the Supreme Court. It is his argument that there were various fabrications carried out....
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....he appellant had pleaded that the department had erroneously demanded duty on the entire humidification plant installed at the site of the customers, when the appellant has manufactured only parts and components of the humidification plant. He submits that pursuant to the said argument of the appellant, this Tribunal has remanded the matter for re-quantification of the demand, taking into consideration,clearance value of only parts and components of the humidification plant, and not the entire system, as argued by the appellant. Now, if the plea of the appellant on leviability of duty on the parts and components of humidification plant manufactured and cleared by the Appellant is accepted, then it would result in expanding the scope of the remand order which is not permissible in view of settled principle of law. In support, he has referred to the judgments in the case of Special Tools P. Ltd. Vs CCE Ghaziabad - 2015 (324) ELT 64 (All) and Hi Tech ARAI Ltd. Vs CCE Madurai - 2009 (236) ELT 91 (Tri.-Chennai). Further, he has contended that even though this Tribunal has directed to extend the cum duty price benefit to the appellant in view of the principle of law laid down by the Larg....
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.... the matter. It is not an open remand to examine the leviability of duty on parts and components manufactured by the appellant, but limited for computation of the demand restricting only to parts and components of humidification plant, which is further evident from the fact that penalty imposed on other Appellants had been confirmed albeit reduced. In the de novo adjudication, after analyzing the arguments and inclusion of the value of the entire humidification plant, the Ld. Commissioner recorded his findings at para 8.5 and 8.6 of the impugned order, reproduced as below: 8.5 First I will take up the issue whether demand of duty by the department is on the value ofwhole humidification plant or it is on the valueof part and components of humidification plant manufactured by the said assessee. From the perusal of Show Cause Notice, I find that the demand of duty was quantified therein on the basis of worksheet prepared by Shri SaurinbhaiAshikbhai Kapadia, Director of M/s Aerodynamics (P) Ltd. In his statement dated 22.04.1997, Shri Kapadia while admitting the evasion of duty on the goods manufactured by them, produced a consolidated worksheet showing the details of sales effected b....
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....to buyers, which were in the nature of trading firms. 8.6 From the above discussions, it is clear that the assessee's submissions before the Hon'ble Tribunal that the demand has been quantified by taking into account the entire proceeds received by them from their buyers which was for their humidification plant, is factually wrong. 7. In countering the aforesaid findings, the appellant has not placed any evidences before us to show that it has wrongly included the value of certain parts and components, thereby the amount of duty calculated and confirmed is incorrect. In absence of any such evidence before us, there is no reason to interfere with the findings of the Ld. Commissioner on the above issue. 8. As far as the determination of duty, taking the clearance value as cum-duty price is concerned, we find that the Ld. Commissioner has erred in not extending the said benefit even though there was a specific direction by this Tribunal in this regard. The Ld. Commissioner has wrongly applied the judgment of the Hon'ble Supreme Court in Amrit Agro Inds. Ltd.'s case(supra) as the said judgment is not applicable to the facts of the present case inasmuch as in that case the ....