2008 (9) TMI 672 - AT - Central Excise

Demand - Show cause notice, absence of allegations - Remand by Commissioner (Appeals) - Verification of facts

Summary

Issues:
1. Duty demand on Polyester waste during Dec. 1994 to Feb. 1995.
2. Contradiction in dropping demand for Dec. 1994 to Feb. 1995 and verification of duty payment from March 1995 onwards.
3. Power of Commissioner (Appeals) to remand the case.
4. Liability to duty on waste generated and cleared after March 1995.
5. Proceedings dropped for demand covering Dec. 1994 to Feb. 1995.
6. Dismissal of Cross objection by the assessee.

Analysis:
1. The Revenue challenged the finding of the Commissioner of Central Excise (Appeals) regarding the duty demand on Polyester waste during Dec. 1994 to Feb. 1995. The Tribunal noted that the show cause notice did not specify any quantity of waste cleared during that period. The appeal memorandum before the Tribunal did not challenge the dropping of demand for this period due to the absence of allegations in the notice. The Tribunal found no contradiction in the Commissioner's order and remitted the issue to verify duty payment on waste generated and cleared after March 1995.

2. The Revenue raised concerns about the contradiction between dropping the demand for Dec. 1994 to Feb. 1995 and sending the case back for verification of duty payment from March 1995 onwards. The Tribunal clarified that there was no contradiction as the Commissioner (Appeals) acted based on the assessees' admission of liability to duty on waste generated after March 1995. The Tribunal upheld the remand for verifying duty payment on waste cleared post-March 1995.

3. The Tribunal addressed the contention raised by the ld. DR regarding the Commissioner (Appeals) remanding the case after the amendment of Sec. 35A. Despite the amendment, the Tribunal deemed the remand necessary to ascertain if duty was paid on waste generated and cleared after March 1995. The Tribunal justified the remand for verification purposes.

4. The Commissioner (Appeals) dropped the proceedings for demand covering Dec. 1994 to Feb. 1995 based on the assessees' submission that duty was payable only upon the clearance of waste, with no indication or allegation of waste clearance during the mentioned period. The Tribunal found no merit in the Revenue's appeal on this issue and rejected it accordingly.

5. The Cross objection filed by the assessee was dismissed by the Tribunal as it was considered to be in the nature of comments on the Revenue's appeal, leading to its dismissal.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT, MUMBAI provides a comprehensive overview of the issues involved and the Tribunal's decisions on each matter, maintaining the legal terminology and key points from the original text.