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TMI Blog2016 (4) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... A/86915-86918/16/EB - Dated:- 1-4-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri Bharat Raichandani, Advocate For the Respondent : Shri Ashutosh Nath, Asstt. Commissioner (AR) ORDER PER: RAJU The relevant facts of the case were recorded in the Tribunals Order No. A/947 to 950/12/EB/C-II dated 17.10.2012, which are as follows: - 3. In the present case, proceedings against the appellants were initiated by issuing a show-cause notice dated 8.6.1989. The allegation in the show-cause notice is that M/s Central Cables (P) Ltd., the appellants are engaged in the manufacture of electric wires and cables falling under Chapter sub-heading 85.44 of the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receiving them back and hence ownership never changed hands. The adjudicating authority confirmed the demand and imposed penalties. 4. The appellants filed appeals before the Tribunal and the Tribunal vide final order dated 24.12.2002 allowed the appeals filed by the appellants and set aside the demand. Revenue challenged the order before the Hon'ble Bombay High Court and Hon'ble High Court vide order dated 13.10.2010 in Central Excise Reference No. 4/2003 set aside the order passed by the Tribunal and remanded the matter to the Tribunal. In pursuance of the remand order passed by the Hon'ble Bombay High Court, the Tribunal vide order dated 23.2.2011 again set aside the demand and allowed the appeals filed by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty while returning the manufactured goods to the supplier of raw materials, then the question of the supplier of the raw materials claiming full credit under Rule 57B of the Central Excise Rules, 1944 does not arise at all 2. Vide the aforesaid order No. A/947 to 950/12/EB/C-II dated 17.10.2012, the Tribunal ordered as follows: - 8. We find that on the issue framed by the Hon'ble Bombay High Court on which the matter has been remanded, the adjudicating authority has not given any finding. The correspondence now produced by the appellants also required verification. In view of this, we find that the matter required reconsideration by the adjudicating authority in view of the observations made by the Hon'ble Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with proviso to Section 11A of the Central Excise Act, 1944 Or (iii) Inadmissible notional modvat credit taken and utilized of ₹ 32,88,873.82 should not be recovered from noticee No. 1 under Rule 57A read with proviso to Section 11A of the Central Excise Act, 1944. It is clear that the SCN sought to confirm only one of the charge (ii) or (iii) and not both. It is noticed that in the first adjudication Order-in-Original No. 9/90 dated 3.4.1990, the Commissioner had accordingly ordered as follows: - Under the circumstances, I hereby order confirmation of duty amount of ₹ 16,44,416.91 short paid/excess credit taken, under Section 11A of the Central Excise Act, 944 read with proviso to Section 11A. Further, I im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y paying documents in favour of Notice No. 2 to 4. (iv) Whether the Noticee No. 2 to 4 can avail the modvat on the documents endorsed by the Noticee No. 1 in favour of them. (v) Whether Noticee No. 1 is entitled to avail the enhanced notional modvat credit in terms of para 5 of Notification No. 175/86 dated 1.3.1986 on the strength of gate passes issued by the Noticee No. 2 to 4 or otherwise. (vi) Whether extended period is applicable in this case or otherwise. It is noticed that the matter was remanded to Commissioner to give his findings in respect of para 6 of the Hon'ble Bombay High Court judgment dated 13.10.2010. The very first question raised in that relates to: - 6. The question as to whether the Central Cables ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, in so far as the show-cause notice seeks to confirm the recovery of duty or reversal of Modvat and not both. c) the commissioner has enhanced the demand and penalty well beyond those confirmed in the first OIO which was not challenged by the revnue. The Order-in-Original No. 9/90 confirmed the duty amount of ₹ 16,44,436/- as duty short paid/excess credit taken. Since the Revenue had not challenged this order, the Commissioner cannot go beyond the impugned order confirmed in this order. In the Order No. 9/90, the penalty imposed on the first noticee is only ₹ 1,50,000/- whereas in the impugned order, the Commissioner has imposed a penalty of ₹ 32,88,873/- on the Noticee No. 1. Similarly, in the original order, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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