9911796707
TMI Blog2004 (8) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the Commissioner of Central Excise, Madurai and Appeal Nos. E/1027 & 1028/1999 filed by the Revenue arise from Order-in-Original No. 2/98 dated 13-2-98 passed by Commissioner of Central Excise, Madurai-2. 2. The assessee-appellants in Appeal Nos. E/3318 to 3123/1998 are aggrieved by the order of the Commissioner against demand of duty and imposition of penalty while the Revenue in their appeal Nos. E/1578 to E/1580/1999 & E/1027 & 1028/1999 is aggrieved by both the orders of the Commissioner restricting the duty demanded from the assessees as also in not imposing penalty under Section 11AC of the CE Act, 1944. 3. The facts and the issue involved in all these cases are same and are therefore taken up for decision by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty viz. Commissioner with the observations that no enquiry appears to have been made with all the dealers as to whether they have paid any amount more than what was invoiced. It was also observed by the Tribunal in the remand order that the details with regard to the enquiry, if any, made with the other dealers and as to how the additional considerations, if at all, have been collected and remitted to the assessees, have not been brought in the order of adjudication. On remand, the matter was re-adjudicated by the Commissioner. In the adjudication orders passed afresh vide orders in original viz. 2/98 dated 13-2-1998 and 8/98 dated 12-8-1998, the Commissioner has clearly recorded that enquiry has not been made so as to cover all the dealers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce that extra considerations have been received by them, and that there was also absence of cross-examination of persons who had given affidavits and hence the demand should be set aside. This is the second round of litigation before the Tribunal. 5. Learned Counsels representing the assessees have reiterated the grounds of appeal and submitted that the de novo orders have been passed without any corroborative documents to support the allegation of the department. Further, there was absence of cross-examination also of the persons who had given affidavits and the present orders are based on assumptions. They, therefore, prayed for setting aside the impugned orders. 6. Smt. R. Bhagyadevi, learned SDR assisted by Shri A. Jayachan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to cover all the dealers who have placed purchase orders on the Fireworks factories on the basis of which the difference between the invoice value and the purchase order price has been arrived at. On appreciation of the evidence, the Commissioner has clearly held that though there has been under valuation of the goods, evidence is only to a limited extent viz. the excess payment received as admitted by some of the dealers as well as DDs received and credited in the personal SB account of the partners. He has also held that so far as the remaining dealers who have not been investigated, benefit of doubt has been extended. Needless to mention that when evidence available is only to a limited extent, demand has to be restricted to that extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of the Revenue for imposing mandatory penalty under Section 11AC is concerned, the period in the present appeals is prior to the introduction of Section 11AC with effect from 28-9-96. It is well settled proposition of law that provisions of Section 11AC cannot be applied retrospectively. Therefore, the Commissioner was perfectly right in not imposing penalty under Section 11AC. In view of our discussion and finding above, and in the facts and circumstances of the case, we uphold the impugned order and confirm the demand of duty and imposition of penalty in terms of the impugned order in entirety. In the result, the appeals filed by the Revenue as well as those filed by the assessees are dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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