9911796707
TMI Blog2003 (6) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... this Bench on 17-3-2003. 2. To briefly recapitulate facts relevant for considering admissibility of the application, the applicant hold Central Excise Registration No. 1/92. They are engaged in the manufacture of aluminium pressure cookers and parts thereof, and wheel skins (for export only), respectively falling under sub-heading No. 7615.20 and 7615.10 of the First Schedule to the Central Excise Tariff Act, 1985. On charges of clearance without payment of duty of spares to their godown at Bangalore and of components to their Hosur Unit, and 13 other issues involving nonpayment of appropriate duty, subject SCN had been issued to the applicant proposing to demand totally a duty of Rs. 2,19,05,152/-. This was subsequently confirmed by the Commissioner in his O-I-O No. 4/99 dated 17-3-1999, read with corrigendum dated 6-4-1999, for an amount of Rs. 2,04,61,531/-, apart from imposing penalties on the applicant and their Senior Vice President (Operation) and demanding interest, under the provisions cited therein. 3. The applicant had filed an appeal before the Hon ble CEGAT who upheld the duty demand confirmed by Commissioner, except on 4 matters which were asked to be readjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed, it has been submitted that the following issues are restored to the original SCN position, partly by the Tribunal vide its final Order dated 18-1-2000 and partly by the Apex Court vide its final Order dated 3-12-2002, for adjudication afresh by the Commissioner, (i) The issues on merits which had been referred above involving a duty of Rs.22,76,736/- and the differential duty of Rs. 15,22,657/- under Rule 57E.(ii) The entire aspect of imposition of penalty u/s 11AC and Rule 173Q as alleged in the show cause notice. (However, the above amount of Rs. 22,76,736/- appears to be an apparent error. As per para 13 of the Statement, applicant had agitated before CEGAT on five issues on which the duty amounted to Rs. 23,67,240/-. On the other hand, the Hon ble CEGAT had observed in its order, as stated supra, that the applicant had filed appeal on four issues which they had remanded back to Commissioner for de novo consideration. The duty amount involved in such issues worked out to Rs. 23,40,073/-. This is conceded by the applicant also in his petition dt. 13-3-2003 filed after the hearing where he quotes duty involved as Rs. 23,40,073/- in respect of the four issues specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issues, in which the aforesaid issue relating to advertisement and sales promotion expenses does not figure. The Bench had also desired to know whether the eligibility of applicant to Modvat credit of Rs. 15,22,657/- sought for in the application was subject matter of appeal before the Apex Court. The applicant s counsel contended that invokability of extended time limit was subject matter of appeal with the Supreme Court and hence, by implication, the said judgment would require de novo decision on the eligibility of Hosur Unit for Modvat credit of Rs. 15,22,657/-. Finally, the Bench also queried as to whether the admitted duty liability of Rs. 9,84,475/- related to shortage of final product manufactured by the applicant, or of inputs procured by them, and if due only on the inputs, whether the demand for the same would be demand of duty as required under the definition of the term case u/s 31C of the Central Excise Act, 1944. The counsel mentioned that the amount related to shortage of inputs which is demanded under Rule 57I(1) (ii) read with proviso to Section 11A of the Act, and the entire exercise is for collection of duty and, therefore, the proceedings are covered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded to agree with these pleas. The very object of the Commission is to deal with applications of assessees seeking immunity from penal levy, subject to their admitting true and complete duty liability. Hence an approach to the Commission to escape penal levies is not shut out, rather is intended subject to the above observation. Further, as mentioned by the applicant, in terms of Section 32E an assessee may, at any stage of a case relating to him make an application. Therefore, the applicant has a right to approach the Commission for immunities even at the stage of de novo consideration and not necessarily before issue of an Order on a SCN. The Respondent Commissioner s representative has also conceded that the applicant satisfies all other conditions to file an application before the Commission. 12. In the instant case, the issues raised in the SCN and confirmed by the OIO of the Commissioner have been been remanded piecemeal by two orders of different forums - Hon ble CEGAT and Hon ble Supreme Court. Though, as stated above, an application can be made even at de novo stage, there is a peculiarity in the instant case. If they were to approach the Commission following an Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Order takes note of all the grounds of appeal, including that on sales and advertisement and, therefore, this is also an issue pending decision. However, in so far as the balance of duties (other than on the five issues referred to in the application) confirmed by the Commissioner s order and upheld by the CEGAT are concerned, the Apex Court order itself observes that However, it is clarified that with regard to the payment of the excise duty, the learned counsel for the appellant has not raised any contention because the appellant has willingly tendered the said amount without any dispute . These have been deemed as admitted by applicant even earlier to approaching the Commission. 14. As a result, the Bench finds that the application merits admission. Out of the total demand of Rs. 2,04,61,531/-, the amount in dispute and requiring to be settled at present is Rs. 23,67,240/- on five issues, four of which were specifically remanded for de novo consideration by CEGAT and one can be taken as remanded for de novo consideration by the Hon ble Supreme Court. 15. Accordingly, the application is allowed to be proceeded with in terms of sub section (1) of Section 32F of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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