9911796707
TMI Blog2003 (1) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Act, 1944, besides mandatory penalty of equal amount confirmed under Section 11AC under the order in original No. 7/2002(Commr.), dated 12-2-2002. The Commissioner under the order impugned has also demanded interest amount on the duty demanded, in terms of Section 11AB of the Central Excise Act, 1944. Applicants/Appellants are manufacturers of bright bars, nose bars and spares for textile machinery falling under chapter sub-headings 7214.90, 8448.00 of the CETA, 1985. They were doing job work to their customer viz. M/s. Lakshmi Machine Works, Unit I and Unit II on the materials supplied by them. Appellants were receiving black bars under delivery challans issued under Rules 52A and 173G of the erstwhile Central Excise Rules, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vishvaman Industries v. CCE reported in 2001 (127) E.L.T. 155 applies to their case. However, the Commissioner held that this case law is not relevant for the period, which finding is not correct, according to the appellants. He also submitted that there was no suppression on the part of the appellants. He further submitted that the appellants will not be able to get the duty reimbursed by their customers as the duty was payable only on the value as indicated in the invoice. He has also cited the ruling of the Tribunal in the case of Lili Foam Industries (P) Ltd. v. CC, reported in 1990 (46) E.L.T. 462, para 24, which deals with re-opening of assessment. It was held therein that the demand of differential duty can only arise when the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment. In this connection he referred to the finding portion of the order-in-original wherein the Commissioner has dealt with the aspect of suppression. He has also referred to the comments received from the Joint Commissioner of Central Excise, Coimbatore wherein it is stated that the allegation in the show cause notice relates to revision of assessable value of bright rods by forming the basis of calculation of Landed cost of materials rather than the invoice value of inputs. It is also stated therein that there was not even a whisper about the concept of manufacture in the show cause notice and in such a situation the appellants are not justified in advancing a fresh plea before the original authority or before the Tribunal in regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee has admitted in their reply that correct value was not adopted in respect of the supplies of black bars made by their customer. Their contention was that the method of valuation adopted was reflected in the invoices issued by them to their customer, but the department took the view that in the absence of declaration under Rule 173C it would not be possible for the department to analyse the price structure. Appellants have cited certain case laws as noted above in support of their plea. However, all the above aspects are to be gone into in detail at the time of final disposal of the appeal based on the evidence available on record, and not at this interlocutory stage when we are dealing with only the stay petition. On goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in Para 4 has noted that the appellant's plea that the process carried out by them does not amount to manufacture was beyond the scope of show cause notice. Let it be so. The assessee is entitled to raise any legal plea even at the appellate stage pertaining to non-excisability and non-levy. This is a settled position of law. The averment in the show cause notice is the ground chosen by the revenue to raise demands. The assessee will come out with several pleas in defence. It cannot be said that the pleas taken up in defence are outside the scope of show cause notice and it cannot be looked into. Such a proposition is unknown to law and I am not agreeable with this fiction brought in by my ld. Brother and the lower authorities in this reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the difference of opinion, the following questions arise for determination by the third Member. Whether the appellant is required to pre-deposit an amount of Rs. 15,50,000/- as directed by Member (T) within three months from the date of receipt of the order Or Whether full waiver of pre-deposit of duty amount including penalty and stay of its recovery is required to be granted by allowing the stay application and list the appeal out of turn for final hearing as directed by Member (J). Sd/- (Jeet Ram Kait) Member (T) Dated : 5-12-2002 Sd/- (S.L. Peeran) Member (J) Dated : 5-12-2002 7. [Order per : G.A. Brahma Deva, Member (J)]. - Since, there has been a difference of opinion between two Members of the Bench, the following q ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
