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TMI Blog2017 (3) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... d of duty of clandestine clearances then the penalty under Section 11AC would have been inclusive of this duty. In this case penalty u/s 173Q has been imposed in respect of goods which were seized and confiscation, we find no error in imposing penalty under the said rule. Appeal dismissed - decided against appellant. - E/1031/06 - A/86062/17/EB - Dated:- 27-2-2017 - Mr Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) None for the Appellants Shri. N.N. Prabhudesai, Superintendent (A.R.) for the Respondent ORDER Per Raju This appeal has been filed by the M/s. Mayur Industries against confirmation of demand of duty and imposed equivalent penalty under Section 11AC and also penalty under Rule 173Q. 2. The appellant manufacture Camphor on which they did not pay duty that was due. The appellant received camphor powder from two manufacturers and manufacture tablets/slabs/Thal out of it. The appellant also received camphor from brand Saraswati from M/s. Camphor and Allied Products Limited, which it repacked and that such repacking satisfied the requirement contained in Note 6 of Chapter 29, on this too no duty was paid. The matter reached up to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packing material and coming to the conclusion that the appellant had repacked the duty paid camphor tablets/slabs/thals receieved from Camphor Allied Products Lts Bareily. It has been argued that tablets/slabs received from Camphor Allied Product Ltd Bareilly were in the form of Jumbo Packs of 10 kgs to 25 kgs which in turn contained retail packs of 4 gms, 5 gms and 500 gms with their brand name Saraswati. Appellant had only sold such retail packs in small quantities, therefore there was no question of manufactured by them. The appellant had claimed that some goods obtained from M/s. Camphor and Allied Product Ltd were sold as it is and therefore there is no question of re-packing the same and no liability on account of manufacture of the same. The appellant also claimed benefit of modvat credit and all cum duty assement of the goods. 4. Ld. A.R. argued that appellants were engaged in repacking of Saraswati Brand Camphor which was registered brand M/s. Camphor and Allied Product Ltd and were clearing the same without payment of duty. Officer had seized the labels from the factory premises on which following words were inscribed Saraswati Camphor Pure Camphor Campho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blets/slabs/thal, appellant were engaged in repacking of Saraswati brand Camphor clearing the same without payment of excise duty. Ld. A.R. pointed out that arithmetic mistakes pointed out by the appellants were accepted and necessary correction has been made by the order, consequently reduced the duty liability of ₹ 5,00,452/- as against ₹ 19,90,107/-. 5. We have gone through rivals submissions. 6. We found that matter was remanded for reconsideration of the following issues. (a) Availability of Cenvat Credit (b) Cum duty benefits. (c) Correction of calculation errors (d) Examination of the claim of the appellant that Saraswati brand camphor cleared by them was received and cleared as such and not liable to duty. (e) Verification of the claim that superintendent visited the factory on 3-4-1997 and appellant had written a letter dated 9-4-1997. We find that appellant claims on first three counts has been considered and consequently demand has been revised to ₹ 5,00,452/-. On the issue of manufacture of Saraswati Brand camphor, claimed to have been received as such, Commissioner has observed as under: 25.3 The Noticee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said letter date 9-4-1997 addressed to the Superintendent, which the Noticee claims to have sent under certificate of posting, has been received by the department or not. Accordingly, enquiry had been conducted by the investigating officers. The gist of the same was communicated to the Noticee vide this office letter C.No.V(29)15- 141/2002/Adj/18966 dated 8-12-2005 for submitting their defence, if any. As per direction of the Hon'ble CEGAT, the Not icee was also granted an opportunity of personal hearing on 20.12.2005 in this regard. The Noticee appeared for personal hearing on 20-12-2005 and submitted a written submission dated 20-12-2005. First of all, it is pertinent to mention here that during the course of earlier adjudication proceedings, the Noticee has neither taken this plea in reply to the show cause . notice nor during the course of personal hearing that they had informed the department of their activities they were engaged in, vide their letter dated 9-4-1997. It is also claimed that the letter refers to a recent visit by the Superintendent, Central Excise to the factory. It is for the first time the Noticee had claimed this plea during appeal before the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first round of litigation before the Commissioner. Having failed to do so it would appear that the same is afterthought and therefore said claim is discarded. Appeal is consequentially dismissed. Next issue raised by the appellant is that penalty of ₹ 5,00,452/- has been imposed under Section 11AC of the Act and penalty of ₹ 2, 66,315/- has been imposed under Rule 173Q. It has been argued that once the penalty under Section 11AC has been imposed, no separate penalty under Rule 173Q can be imposed. Perusal of orders shows that penalty of ₹ 5,00,452/- has been imposed with regard to clandestine clearance of the goods and for evasion of duty. Penalty under Rule 173Q has been imposed in respect of seized goods and the duty liability thereon. Seized goods were held to be liable to duty of ₹ 2,66,315/- . Had this duty been included in the demand of duty of clandestine clearances then the penalty under Section 11AC would have been inclusive of this duty. In this case penalty under Section 173Q has been imposed in respect of goods which were seized and held liable to confiscation, we find no error in imposing penalty under the said rule. The appeal is consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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