9911796707
TMI Blog2011 (9) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... roper interpretation of Notification 58/97-CE dated 1.9.97 for which Revenue's appeal before the said authority was allowed. He did so making an elaborate discussion in page 3 and 4 of his order. Looking into conditions of the Notification No.58/97-CE dated 1.9.97 he opined that the conditions were safeguard in nature to protect Revenue. According to him the input used by the appellant were procured from a manufacturer who was subject to compounding levy under section 3 A of Central Excise Act 1944 did not pay the duty duly and claim of suffering of duty on those goods was found to be not in consonance with the Notification requirement. He accordingly disallowed the claim. 2. Ld. Counsel Shri Mullick submits that deemed credit is a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Perusal of the definition of Adjudicating Authority under section 2(a) and definition of Central Excise Officers appearing in section 2(b) of Central Excise Act 1944 does not appear to have recognised a Superintendant as Adjudicating Authority or Central Excise Officer. He was not competent to issue the certificate relied upon by the appellant for no prescription in law. There is no Notification available on record to appreciate that he is an officer authorised by section 2 (b) of Central Excise Act 1944 under Central Board of Revenue Act, 1963. If such an Officer is not competent and recognised by law to issue certificate the department should take action against the Officer those who issue the certificates not recognised by law.Ld. CDR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy input for manufacture of DTA sales goods. G. If for any reason the deemed credit could not be adjusted against any duty payment due to expert or duty draw back is not claimed, unutilised deemed credit is refundable subject to fulfilment of prescribed condition. H. The benefit of the Notification applies only to those manufacturers who receive directly notified inputs enjoying compounding levy from the factory of the manufacturer under cover of an invoice with a clear declaration of payment of appropriate excise duty in terms of section 3 of Central Excise Act 1944. I. The Notification does not apply if there is no declaration of payment of duty or invoice price is not declared in the invoice. There is further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erit for which levy of duty is confirmed. 10. So far as the penalty aspect is concerned, there was imposition of penalty of Rs.7,500/-, Rs.10,000/-, Rs.8,000/-, Rs.25,000/- and Rs.15,000/- in these appeals invoking section 57 I (4) of the Central Excise Rules, 1944. Ld. Counsel submits that when the appellate authority below could not make any finding that the ingredients of fraud, wilful misstatement, collusion or suppression of fact or contraventions of provisions of the Act and rules made there-under exist with intent to evade payment of duty, the appellant gets immunity from penalty. But Revenue opposes such a proposition on the ground that non-compliance to the Notification itself calls for penalty. 11. Perusal of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
