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TMI Blog2004 (4) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... r. No. Appeal Nos. Impugned order Amount Involved (Rs.) Period 1. 145/2003 O-I-O No. No. 151- 170/CEX/DEM/DC/2003, dated 19-6-2003 (impugned order No. 1) Duty: Penalty: Refund: Rs. 2,71,86,643/- Rs. 25,00,000/- Rs. 5,90,18,990/- April, 1997 to June, 2002 2. 240/2003 O-I-O No. 373/CEX/DEM /DC/2003, dated 22-10-2003 (impugned order No. 2) Duty : Penalty: Rs. 25,76,049/- Rs. 10,00,000/- February, 1995 to June, 1997 2. The Appellants are manufacturing Ammonia (Heading 29.14) and Fertilizers (Heading 31.02) out of Naphtha/Natural Gasoline Liquid (NGL), procured by them on concessional rate of duty in terms of Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring fertilizers and ammonia. By the impugned order No. 2, the Adjudicating Authority has confirmed duty so demanded on the differential value in respect of the quantity of Naptha and NGL which was used for generating electricity and for which duty was confirmed for the past period. Aggrieved by the impugned orders, the Appellants have filed the present Appeals. 3. S/Shri A.C. Jain, Advocate and V.P. Malaviya, Sr. Assistant Manager (F A) appeared for the Appellants in the personal hearing held on 25-9-2003 for disposal of stay application. Shri Jain submitted that the Adjudicating Authority has not taken into consideration the decision of the Hon ble Tribunal in IFFCO v CCE - 2001 (129) E.L.T. 456 (T) while deciding the issue. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants were issued Show Cause Notices from time to time for recovery of duty alleging that the inputs were not used for the intended purposes. This issue was decided by the Adjudicating Authority vide impugned order No. 1 in which he relied upon the findings of the Commissioner, Central Excise, Indore in Order-in-Original No. 19/COMMR/CEX/98-99, dated 30-12-1998 in which it was decided that the inputs used for generating electricity - placing such use at 36.98% of the quantity received - were not eligible for the concessional rate of duty. The Adjudicating Authority has accordingly confirmed the demands of duty to the extent of 36.98 % of the inputs. It is understood that the Appeal of the Appellants against the Order-in-Original dated 30-12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Consultant for the Appellant rightly and fairly conceded that they are willing to pay the duty demand on this score because such use would be outside the purview of the Supreme Court decision. In view of the ratio of the above decision of the Hon ble Tribunal, the Appellants would be liable to pay duty in respect of the inputs used for generating electricity which was used in the residential complex. In this case, the Appellants have stated that the amount of duty payable by them in respect of the inputs used for generating electricity diverted to the township works out to be Rs. 20,97,422/-. The Appellants, therefore, shall be liable to pay duty in respect of inputs used in generating electricity for the township as may be found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the personal hearing emphasised that the amount of duty actually paid by them being higher than what was payable, they were entitled to consequential refund. I find that as the impugned order No. 1 does not deal with issue relating to refund and the claim has been asserted for the first time in the present proceedings, their plea cannot be considered at this stage. 7. As regards the question of penalty, the Appellants have pleaded that the Hon ble Tribunal vide their final order No. 437/2000-C, dated 7-9-2000 had set aside the penalty of Rs. 2 Crores, imposed by the Commissioner, Indore vide order dated 30-12-1998 on the grounds that penalty under Rule 173Q is not imposable on violation of Rule 196 of the Rules. In view of the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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