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TMI Blog2024 (8) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. Everyone including this Tribunal proceeded on the presumption that it had existed at that time. Even in the written submissions given to the Commissioner on 8.3.2021, the appellant did not raise this issue. After two years, on 26.4.2023, the Commissioner held a personal hearing when the appellant had appeared and made submissions. It does not appear that at any of these stages, the Commissioner had pointed out to the appellant that their case would be examined under Rule 57AH and not under 57U and had given then an opportunity to examine Rule 57AH and make submissions. Only in the discussions part of the impugned order, the Commissioner held that Rule 57U was already repealed and examined the case under Rule 57AH - there are no reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Rules, 1944. Of the goods on which it had availed Capital Goods MODVAT credit were also parts of bins supplied by M/s. Simplex Engineering and Foundry Works [Simplex], which Simplex had classified under Tariff Sub-Heading 8474 90. 3. Officers of the Directorate General of Central Excise Intelligence investigated the matter and found that the goods were mis-classified by Simplex under Tariff Sub-Heading 8474 90 and they were correctly classifiable under Tariff Sub-Heading 7308 90. They also found that if they were classified under 7308 90, the appellant would not have been able to take capital goods MODVAT credit. 4. Accordingly, DGCEI issued a Show Cause Notice dated 3.9.2002 to Simplex and to the appellant. It was proposed in the SCN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to pursue only the challenge to the penalty under Rule 57U(6). By order dated 6.6.2016, the penalty on the appellant was set aside but not the denial of MODVAT. 8. The appellant appealed to the Chhattisgarh High Court and by Order dated 27.3.2017, the High Court allowed the appeal and directed the CESTAT to decide on merits against denial of MODVAT credit. 9. After considering the submissions of the appellant, by Final Order dated 31.5.2017, this Tribunal confirmed the denial of MODVAT only to the extent of normal period of limitation and set aside the rest of the demand and remanded the matter only for the purpose of quantification. The operative part of this order is as follows: 10. In view of the above discussion, the demand for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the SCN, it does not vitiate the demand: a) M/s. Petlad Bulkhidas Mills Co. Ltd. vs. Union of India. [2000(126) ELT 269 (Guj)] b) J K Steel Ltd. vs. Union of India. [1978 (2) ELT J 355 (SC)] 12. Learned counsel for the appellant made the following submissions: (a) Confirmation of demand under new Rule 57AH is beyond the scope of the SCN, the earlier OIO dated 28.11.2005 as well as the remand order of this Tribunal dated 31.05.2017; (b) Since the department had not appealed against the CESTAT s order, it attained finality and all that the Commissioner had to do was recomputed the demand. He could not have reopened the assessment. 13. Learned authorised representative for the Revenue vehemently supported the impugned order. 14. We have consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten submissions on 8.3.2021. Thereafter, the Commissioner fixed a personal hearing after two years on 26.4.2023 and passed the impugned order after another two months on 7.6.2023. There is no conceivable reason for the Commissioner who has taken so long to pass the order to have not even informed the appellant that he would be examining the matter under a new Rule not cited in the SCN and not discussed in any of the previous proceedings and spring it up in his Order. 17. The Commissioner s reasoning is that even if the SCN quotes the wrong Rule, it does not vitiate the proceedings. We agree that if it is only a question of quoting of a wrong Rule in the SCN. All the previous proceedings including in the remanding proceedings before the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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