9911796707
TMI Blog1997 (11) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... The period in question is May, 1993 to February, 1994. 2. The learned Advocate for the appellants, at the outset pointed out that the penalty under Section 11AC could not have been levied as the said provision came into force only with effect from 29-9-1996. He has pleaded, since the cause of action for demand of duty arose during the period May, 1993 to February, 1994, and the penalty to be levied, if any, would be on the basis of the provisions as in force then. In this connection he has referred to the decision of the Hon ble Supreme Court in the case of Brij Mohan v. CIT reported in 120 ITR 1 and also the Circular of the Board in this regard, dated 6-1-1997. He has pleaded, therefore, the penalty as levied could not have been levied a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment felt. This having been pointed out, no information in this regard was furnished to the appellant. He has pleaded that the appellants, therefore, formulated their pleas based on the allegations as had been made in the show cause notice. He has pleaded, before a duty could be demanded, it has to be specifically set out in the show cause notice as to under which Tariff Heading the revenue seeks to charge duty and unless it is done, the appellants would be prejudiced. He has pleaded, this was what has happened in the present case. 6. The learned Advocate has pleaded that in the Order-in-Original, the Commissioner has merely stated that most of the items fell under Tariff Headings 4410 and 9403, without dealing with the individual ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason of Notification No. 46/87 and 1/93, no duty may become chargeable, if note is taken that some of the items which in their very nature, would not be considered as goods for the purpose of excise levy. The goods that he has referred to are false ceilings, columns cladding etc., which by their very nature have to be brought in situ. He has pleaded, the learned lower authority has not taken note of their pleas in this regard. 8. Heard the learned SDR, for the department. He has pleaded that the learned lower authority has clearly come on record as to the items that would be chargeable to duty and the quantum of duty that would be payable. He has pleaded, non-mention of the items specifically without the tariff heading would not prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which according to us prima facie are in the nature of furniture items. 10. The learned Advocate for the appellants have highlighted that certain items like ceilings, column claddings, bar counters etc., which were in situ could not have been charged to duty as furniture. 11. We note that the appellants had taken a plea before the learned lower authority that no separate indication of the tariff heading under which each of the items which were sought to be charged to duty was shown. In spite of this, the learned lower authority did not give the appellants the details in this regard nor he has chosen to deal with the individual items except 5 items, in the impugned order. We find an observation by him in the impugned order that most of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pre-deposit being made as above and we, therefore, set aside the order of the learned lower authority and remand the matter to the lower adjudicating authority for de novo adjudication in the light of our above observations. We make it clear that we are not expressing any views on the merits of the issue and all issues are left open. 15. We also make it clear that while the penalty as levied invoking the provisions of Section 11AC is not sustainable, the learned lower authority is free to levy the penalty in terms of Rule 173Q read with Section 9(2) of the Central Excise Act, if it is held to be leviable in the de novo proceedings. 16. In case, if any extension of time for the pre-deposit arises, the appellants can move an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
