1998 (4) TMI 180 - AT - Central Excise

Summary

Issues:
Stay application regarding order-in-appeal passed by Commissioner of Appeals, Allahabad - Jurisdiction of Commissioner (Appeals) - Demand on cotton fabric - Exemption under Notifications 25/95, 40/95, and 41/95 - Confirmation of demand under Rule 57C - Imposition of penalty - Invocation of Rule 57C at appellate stage - Proper officer for issuing demand - Invocation of Rule 173Q without proposal - Reference to Tribunal's orders and judgments - Modvat credit on fabric excise duty - Ad interim stay granted.

Analysis:
The judgment involves a stay application concerning an order-in-appeal issued by the Commissioner of Appeals, Allahabad. The matter revolves around the jurisdiction of the Commissioner (Appeals) and the demand raised on cotton fabric. The appellant argued that the demand was dropped by the Assistant Commissioner as the fabric was a specified input under Rule 57A, contrary to the department's appeal based on the fabric's exemption under Notifications 25/95, 40/95, and 41/95. The Commissioner confirmed the demand under Rule 57C and imposed a penalty of Rs. 10,000, despite no initial proposal for the penalty.

The appellant contended that invoking Rule 57C at the appellate stage was improper as the show cause notice was based on Rule 57A. They argued that the Commissioner exceeded jurisdiction by confirming the demand under Rule 57C, which was not part of the original notice. Additionally, the appellant highlighted that the notifications dated 16-3-1995 were not mentioned in the show cause notice or considered by the Assistant Commissioner, and the Commissioner lacked authority to issue the demand under Rule 57-I.

Moreover, the appellant referenced Tribunal orders and judgments to support their position, emphasizing the need for the proper officer to issue demands and the limitations on invoking Rule 173Q without a specific proposal. They cited cases to demonstrate that manufacturers have the right to utilize specified inputs even after relevant notifications are rescinded. The appellant also presented evidence of paying excise duty on fabric and availing Modvat credit, supporting their argument that the demand was unjustified.

In response, the Departmental Representative pointed out that the Executive Collector's order referred to the notifications dated 16-3-1995 as grounds for appeal, although no proposal for penalty was made. Despite the absence of received comments, the Tribunal Judge observed that the appellants seemed to have a strong case. Consequently, the ad interim stay was confirmed, waiving the pre-deposit requirement and suspending the duty and penalty realization pending the appeal's resolution.