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TMI Blog2014 (12) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... T] - in so far as the setting aside of entire amount of penalty under Section 11Ac of Central Excise Act 1944. Commissioner (Appeals) accepted that the clandestine removal of the final product involving demand of duty of 11,00,055.00. On a query from the Bench, ld.A.R. submits that the respondent has not filed any cross objection. Hence, the imposition of penalty under Section 11AC of Central Excise Act 1944 in respect of the demand of duty of 11,00,055.00 is warranted. The Hon’ble Supreme Court in the case of Union of India Vs Dharmendra Textile Processors [2008 (9) TMI 52 - SUPREME COURT ] held that the demand of duty on extended period of limitation as well as the ingredients available under Section 11A, a mandatory penalty would be impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. In that notice, it has proposed demand of duty on finished goods under Central Excise Act 1944, and demand of Customs duty on raw material used in the manufacture of finished goods under Customs Act. The adjudicating authority by OIO No.21/ADJ/ADC-SKA/OA/04-05, dt.13.12.2004 confirmed an amount of ₹ 11,00,055.00 as duty of Excise on clandestine removal of finished Grey Fabrics, Rejected Grey Fabrics, Yarn Waste and Polyester Twisted Yarn (Raw materials) under Section 11A of the Central Excise Act 1944. It has also confirmed an amount of ₹ 17,74,693.00 Customs duty as Excise duty recoverable being the aggregate of all Customs duty leviable on 23483 kgs of polyester texurised yarn utilized in the manufacture of Grey Fabrics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.2004, the Tribunal set aside the demand of duty under the Customs Act, 1962. Thereafter, the Revenue issued another show cause notice proposing demand of Central Excise duty on the finished goods clandestinely removed and also there is a demand of Customs duty on raw material used in the manufacture of the said finished goods. 6. The Adjudicating authority confirmed the demand of Central Excise duty on the clandestine removal of the finished product and also the demand of Customs duty on the raw material used in the manufacture of finished goods. Shri Hardik Modh, ld.Advocate, at the request of the Bench, placed the decision of the Tribunal on this issue as under: i) CCE Surat Vs Sanjari Twisters 2009 (235) ELT 116 (Tri-Ahmd) [upheld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may amount to be case of diversion of finished goods, the duty shall be payable in respect of finished goods and no duty become demandable on the raw material used in the manufacture of such diverted goods." 8. I find that the Commissioner (Appeals) had given a detailed finding in the impugned order as under:- "The Order-in-Original has confirmed a demand of Central Excise duty of ₹ 11,00,055.00 on the fabrics, rejects of fabrics and yarn waste cleared to DTA. The duty has been worked out based on proviso to Section 3(1). In addition, the OIO has confirmed an amount of ₹ 17,74,693.00 as Central Excise duty on Polyester Filament Yarn deemed consumed in the goods cleared to DTA. Once the duty is recovered on DTA clearances unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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