TaxTMI 
TaxTMI 
2008 (6) TMI 145
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.... existence which was exempted from Additional Excise Duty (Goods of Special Importance) [AED (GSI)] under Notification No. 28/94-C.E. dated 1-3-94. The appellants were availing this exemption and accordingly were not paying duty up to 1-3-94. However, this Notification was rescinded by Notification No. 71/5-C.E. dated 16-3-95 and accordingly the above processed dipped tyre cord fabric became liable to AED(GSI)@ 5% ad valorem under Ch. 5902. This fabric was cleared by the appellant without payment of duty and therefore 23 show cause notices were issued to them demanding duty on the dipped tyre cord fabric so cleared by them. The appellant disputed the leviability of duty on the dipped tyre cord fabric on the ground that the process undertake....
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....d order of Commissioner dated 31-1-2006 was received by them on 13-3-2006. It is against this order that the appellants have come up in appeal be fore us. 2. Ld. advocate for the appellants submitted that though they still maintain that the dipped tyre cord fabric manufactured by them is not chargeable to duty, however they are not contesting the liability to duty for the reason that the entire duty has been paid by them by debiting their Cenvat AED (GSI) account and since the appellants do not manufacture any product in respect of which AED (GSI) is payable, taking of such credit would only mean a paper entry with no commercial addition. As such, they do not wish to pursue the matter in appeal regarding the issue of dutiability and classi....
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....feel that this is a case where penalty should not be imposed. We therefore delete the imposition of-penalty on the respondents". In their case, since CESTAT has consistently in their own matter held that AED (GSI) was not payable, the bona fides of view taken by them cannot be doubted. 4. It was further submitted that the show cause notices seeks to impose penalty under Rule 173Q without specifying the sub-clause of Rule 173Q under which the penalty is sought to be imposed. He refers to the decision of the Apex Court in the case of Amrit Foods v. CCE, U.P. - 2005 (190) E.L.T. 433 (S.C.), wherein it was held that when neither the show cause notice nor the order of the Commissioner species which particular clause of Rule 173Q of erstwhile Ce....
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....demanded and therefore no such duty remains to be paid by them. The Commissioner's order is however silent on this aspect. Since the credit reversed by them is more than the duty demanded no further duty is payable by them. 6. Ld. DR however stated that since the leviability of duty on dipped tyre cord fabric is not been disputed, he is not going into that aspect. As regards imposition of penalty he invites our attention to the Tribunal's decision in the case of MRF Ltd. v. CCEx., Goa- 2007 (210) E.L.T. 96 (Tri.-Mumbai) wherein also under similar circumstances the matter was held to be one of interpretation but still a penalty of Rs. 5 lakhs was imposed. As regards interest, he agrees that once the duty has been paid within three months fr....