TaxTMI 
TaxTMI 
2019 (5) TMI 446
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....1944. (a) The confirm amount of Rs. 30,49,975/- shall be appropriated against an amount of Rs. 30 lakhs & Rs. 2 Lakhs cash security deposited with Bond by the assessee. (b) An amount of Rs. 12,51,428/- shall be appropriated against the duty amounting to Rs. 27,00,506.42 paid during the year 1987-88 to 1988-89 (upto 22.4.1988) (c) The penalty of Rs. 50,000/- (Rupees Fifty Thousand only) shall be appropriated from the balance amount remaining after appropriation of duty amount as at (a) & (b) above." 2.1 Appellants are manufacturers of cotton and Polyester Cotton blended textile fabrics and yarn. They also manufactured fusible interlining fabrics. They classified and cleared the fabrics under Tariff Item 19i(b) of the First Schedule of erstwhile Central Excise Tariff during the period 1982 to 28.02.1986. After introduction of Central excise Tariff Act, 1985 w.e.f 1st March 1986 they classified the said goods under Chapter 52 (5206) or chapter 55 with reference to the base fabric. The classification lists filed by them were approved by the jurisdictional Assistant Commissioner. 2.2 Officers visited their factory premises on 23rd March 1988 and seized raw material, finishe....
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.... in their own case, the department has accepted that there was no mutuality of interest between the appellants and M/s Mafatlal Apparel Mfg Co Ltd. They also contended that even if the cost of the powder supplied to the appellants by M/s s Mafatlal Apparel Mfg Co Ltd is to be taken into account for valuation of fabric, the same has not been worked out and ascertained by the lower authorities. We find merit in the submissions made by the appellants. Accordingly we refer and the matter to the Commissioner for fresh adjudication who will pass a fresh order after allowing a reasonable opportunity of hearing to the appellants. 3. As regards the charges of clandestine removal, it is the case of appellants that the goods in question were very much in the factory and the request of the appellants was pending with the authorities for additional space. In respect of the appeal No E/3100/3, it is the contention of the appellants that no penalty clause was invoked in the show cause notice and hence the imposition of penalty is not justified. In consideration of the entire facts of the case, we set aside the confiscation and penalty ordered by the lower authority." 2.7 Impugned order refer....
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.... and by both the party's during the course of arguments along with the impugned order. 4.2 Commissioner has in para 27 of his order determined the value and quantified the duty as follows: "27. In terms of Section 4(b) of Central Excise Act, 1944, where normal price of goods is not ascertainable for any reason then nearest ascertainable equivalent thereof is to be determined by resorting to Central Excise (Valuation) Rules, 1975. The Rule 5 of Central Excise Valuation Rules, 1975 prevalent during relevant period is as below:- 'RULE-5 - Where the excisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of Section 4 of the Act except that the price is not the sole consideration, the value of such goods shall be based on the aggregate of such price and the amount of the money value of any additional consideration flowing directly or indirectly from the buyer to the assessee.' Therefore, in view of the above provisions, the cost of coating, and amortised machine cost will have to be included in the assessable value of the impugned goods, since the mills have not provided these details and that the mills have closed down their manufacturing act....
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....tment in the subject matter and that an amount of Rs. 26,00,506.42 (actually Rs. 27,00,506.42 as per Show Cause Notice) was paid under protest and therefore they requested to compute the duty amount and after taking into consideration their submissions return/refund the balance amount with interest @ 18% from the date of deposit/payment. As per Show Cause Notice the mills has paid Rs. 27,00,506.42 during the year 1987-88 and 1988-89. As against this duty payment for this period the duty payable now is worked out to Rs. 1251428/-. This duty liability as shown above is liable to be appropriated against the duty paid as shown above. As regard the duty liability for the period 1983-84 to 1986- 87 which is worked out to Rs. 30,49,975/-, the same is liable to be appropriated against an amount of Rs. 30 lakhs & Rs. 2 lakhs deposited by the mills. Regarding the claim of refund of excess amount paid since this matter is not subject of the present case as the directions given by the Hon'ble CESTAT are specifically for determination of value of fabrics. Thus, I do not want to dwell with this at this juncture. 28. In view of above findings I hold that M/s. Standard Industries Ltd. ....