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TMI Blog1997 (7) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for the appellants has pleaded that the appellants are a Government of India Undertaking and they have got the clearance from the Committee of Secretaries constituted in terms of the judgment of the Hon ble Supreme Court in the case of ONGC, who have allowed the appellants to contest the appeal before the Tribunal after making the payment of the duty as demanded in terms of the impugned order. The learned Consultant has stated that the duty amount of Rs. 62,71,869/- has already been paid under protest and they are now before us for the dispensation of the amount of penalty levied by the learned lower authority. The learned Consultant has pleaded, as it is, the appellants were not required to pay the duty as held payable by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for home consumption, as at the stage of its removal, the duty which it had suffered, had already been utilised by the user of input. Therefore, in order to undo this act, the duty which the input had suffered earlier, is required to be paid back, even if the duty had been reduced at a level lower than the rate at which duty had been paid by the original manufacturer. The proviso to Rule 57F(1)(ii) makes this aspect clear. Therefore, the Rule directs the user of the inputs to maintain the level of rate of duty, even if rates of excise duty have come down. This same benefit availed by revenue is also required to be granted to the user of inputs when the rates go up by recovering only the rate of duty utilised by him at the time of taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie covered so far as to the extent of demand is concerned by the ratio of the decision of the Larger Bench in the case of American auto Service referred to supra. We also observe that the appellants are not contesting the demand equal to the Modvat credit taken by them in respect of the goods, the issue, therefore, to be decided only relates to the quantum of penalty which is leviable and in respect of which a leniency is pleaded before us. Since the issue falls in a short campus, with the consent of both the sides, the appeals themselves are taken up for disposal by dispensing with the pre-deposit of the penalty. 6. The learned Consultant for the appellant s Shri Rajappa has pleaded that there was some mistakes committed in the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the appellants had not paid the duty, that if the appellant had paid the duty as required by law at the time of removal, if the funds have been borrowed from a Bank, the interest of atleast 18% would have been charged. This position has not been contested but it was pleaded that varying rates of interest are charged. Taking into consideration these facts, we had asked the learned Consultant and the learned JDR to do an exercise as to the amount of Modvat credit which was utilised by them and for that how much would be the interest liability over a period of time. This figure according to them, approximately comes to Rs. 40 lakhs. We had pointed out to the learned Consultant that this advantage that the appellants had gained out of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been obtained. In this background, therefore, we hold that the plea of bona fides cannot be accepted. 10. We observe, the appellants had the advantage of the money over a long periods and on their own calculation which has been seen by the JDR, the interest liability alone has been calculated at the rate of 18%, which would come to around to Rs. 40 lakhs. The appellants do not dispute that they are required to pay the amount of Rs. 44,96,478/- that is the amount equal to the Modvat credit taken in respect of the goods in question. We observe that the appellants have rightly pressed into service the ratio of the decision of the Larger Bench. The Larger Bench has clearly held that in case of the goods received for manufacture by an asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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