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TMI Blog2010 (8) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... t of their customer. They were liable to pay appropriate duty on the scrap in terms of Rule 57F(5), which they paid belatedly. - E/1800/2003-MUM - A/249-250/2010-WZB/C-II/EB - Dated:- 3-8-2010 - S/Shri P.G. Chacko, S.K. Gaule, JJ. REPRESENTED BY : Shri N.A. Sayyad, JDR, for the Appellant. [Order per : P.G. Chacko, Member (J)]. The appeal is by the Revenue, aggrieved by the decision of the lower appellate authority which set aside the Order-In-Original. The appellant is represented by the ld. JDR, but there is no representation for the respondent despite notice, nor any request for adjournment. The respondent s counter to the Revenue s appeal, styled as cross-objections , is available on record. We have examined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal, it is submitted that the finding recorded by the lower appellate authority that the scrap had been accounted for in RG 1 register and cleared on payment of appropriate duty by the respondent (job worker) is not correct. It is submitted that the respondent had cleared the scrap at Nil rate of duty in terms of SSI Notification No. 8/99, dated 28-2-99. They were not entitled to avail SSI benefit on the scrap which was generated during the course of job work. The fact that the scrap was retained without being returned to the customer was suppressed by the respondent, which, according to the appellant was in gross violation of the provisions of Rule 57F(5) of the Central Excise Rules. As regards non-payment of appropriate duty on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out that the adjudicating authority demanded a higher amount of duty than what was demanded in the show-cause notice. Further, it appears from the respondent s submissions that they obtained refund of Rs. 83,591/- pursuant to the appellate Commissioner s order. 4. After considering the submissions, we find that the duty on the amortized value of the dies/moulds was paid by the assessee prior to issuance of the show-cause notice. Similarly, the duty, on the scrap was also paid by the party. Both the amounts were appropriated by the adjudicating authority. The show-cause notice demanded duty of Rs. 79,230/- only. Therefore, in the matter of demanding the differential amount (Rs. 83,591/- Rs. 79,230/-), the adjudicating authority had tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to redetermine the amount of penalty under this provision of law correctly. As regards Rule 173Q, we have not come across any specific ground raised in the present appeal. Suppression of facts with intent to evade the payment of duty is not relevant to Rule 173Q, though it may be relevant to Section 11AC. The present appeal contains no specific ground in support of a penalty under Rule 173Q. As regards interest on duty under Section 11AB, there can be no case for the respondent inasmuch as the reason for levy of this interest is identical to the reason for invocation of the proviso to Section 11A(1) of the Act. 4. As regards the plea raised by the respondent that they were entitled to avail SSI benefit in respect of the scrap in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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