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TMI Blog2016 (3) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... SSI exemption, duty is payable by the appellant for the period 1989-90 on clandestine clearance of Nickel, Lead and Tin Alloys (if any) alongwith the demand of duty already confirmed for the period 1988-89. The appellant has to pay 25% of the duty confirmed as penalty, as discussed. - Excise Appeal No. E/1415/2007-EX(DB) - Final Order No.53895/2015 - Dated:- 22-12-2015 - ASHOK JINDAL, MEMBER (JUDICIAL) AND B RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner : Shri J P Kaushik V R Sethi, Advs. For the Respondent : Shri Govind Dixit, DR ORDER PER: ASHOK JINDAL: The appellant is in appeal against the impugned order confirming the demand of duty of ₹ 50,10,034 along with interest and a penalty or ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the matter to the appellate authority vide order dated 19.09.2001. Thereafter, by the impugned order, the adjudicating authority confirmed the demand of ₹ 38,94,439/- in addition to the demand already confirmed by the order dated 7.12.99 and imposed a penalty of ₹ 50 Lakhs under Rule 173 Q of the Rules. 3. Ld. Counsel for the appellant submits that initially the charge of clandestine removal was proposed on three metals viz. Nickel, Tin and Lead alloys but the adjudicating authority has confirmed the demand for six metals viz. Nickel, Lead, Tin, Copper, Zinc and Cadmium alloys. It is the contention of the ld. Counsel that there is no allegation against the appellant for clandestine manufacture and removal of copper and zinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty and penalty be re-quantified. 4. On the other hand, ld. AR supported the impugned order and contested that the show cause notice is issued to the appellant on the basis of the sales tax figures shown by the appellant in their ST return to the Sales Tax Department which includes the turnover of Copper, Zinc and Cadmium alloys. He also submits that as it is a case of clandestine removal of clandestinely manufactured goods, therefore, input credit is not available on the inputs. He also submits that as this Tribunal has rejected their claim of SSI exemption for the period 1988-89 and the show cause notice is issued for the combined period, therefore, they are not entitled to avail SSI exemption benefit. He also submits that interest is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vail cenvat credit on the inputs used in the manufacture of clandestinely manufactured and cleared goods and no contrary decision has been produced by the ld. AR. In that circumstances, it was held that the appellant is entitled to avail cenvat credit on the inputs contained in clandestine manufactured and cleared goods on production of relevant documents. (c) We find that during the year 1988-89, the total clearance of the appellant is 81,52,454.13. In that circumstances, the appellant is entitled for the benefit of SSI exemption as per notification no,174/86-CE dated 1.3.86 as held by this Tribunal in the case of Premier Rubber Factory (supra), wherein this Tribunal has observed as under:- 5. We have carefully considered the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to only those manufacturers who had disclosed their manufacturing activity to the Department and would not be applicable to others in whose case the manufacturing activity was detected later by the Department. The Special Bench has held that rate of duty was quite independent of the question of taking out a licence or filing a classification list etc. The concessional rate is applicable to all manufacturers who fulfilled the terms of the Notification. Since a specific plea in this regard has been taken by the appellants with reference to the applicability of various Small Scale Industries Notification and entitlement thereto and since the same has not been adverted to much less considered in the impugned order, without expressin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of the demand is so determined, the rate of duty applicable to the demand would have to be the effective rate applicable in force. We have not been shown any authority in law which says that every assessee held guilty of unauthorised removals would have to pay duty only at the higher tariff rate and that they would stand debarred from availing of the exempted rate, even though otherwise applicable, by the mere reason of their suppressed activity. 3. We also find no condition laid down in the aforesaid exemption notification to the effect that the grant of set off or reduction in duty would be dependent on Rule 56-A procedure being followed. In the absence of such a mandatory condition, in the notification, the Collector cannot ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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