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TMI Blog2004 (3) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. E/1009/2003 has been filed by the Murbad unit manufacturing multi layer plastic laminated tubes and caps; Appeal No. E/1011/2003 has been filed by the Vasind unit, who are engaged in the manufacture of multi layer plastic laminated tubes, webs and films. 2. The appellants, who were the three units of the manufacturer, were receiving inputs for further manufacture of their finished goods from their own units as well as from others such as M/s. Pride Plast, P.P. Packing Ltd., which were cleared by those units without determining the value as 115% of the cost of production or manufacture of such goods in terms of Rule 8 read with Rule 11 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers. The notice issued to the Wada, (Thane) unit is dated 9-4-2002 proposing recovery of duty of Rs. 1,14,62,018/-; the notice to the Murbad unit is dated 9-4-2002 proposing recovery of duty of Rs. 26,47,064/-; the notice to the Vasind unit was also issued on 9-4-2002 proposing recovery of duty of Rs. 51,32,481/-. The notices were adjudicated by three separate orders of the Commissioner of Central Excise, who confirmed the demands raised in the notice together with interest; imposed penalties of amounts equal to duty on each of the three units. In respect of Wada (Thane) unit he imposed a penalty of Rs. 29,60,000/- on its General Manager (Commercial) and Rs. 5 lakhs each on the Commercial Manager and the Deputy Manager (Commercial) under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appropriation of the amount of Rs. 49,60,618/- already paid on clearance of the goods to the appellants' other factories. The Deputy Commissioner of Central Excise passed order-in-original 1021 and 1022/2001-2002, dated 22-1-2002 confirming the demands appropriating the amount already paid and imposed penalty of Rs. 25 lakhs and Rs. 5 lakhs on Vasind and Wada (Thane) unit respectively; appeals were preferred to the Commissioner (Appeals) who vide his order-in-appeal dated 31-10-2002 upheld the penalty; the appellants filed appeal Nos. E/155 & 156/2003-Mum., contending that since the show cause notice did not allege any suppression of facts, mis-statement penalty cannot be imposed; the Tribunal passed final order No. A/157 and 158/WZB/2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned orders. The burden of proving that the differential duty covered by the supplementary invoices in question become recoverable on account of suppression, wilful mis-statement, fraud collusion, etc., in order to apply Rule 57AE(1)(i) lies on the Revenue particularly in view of the stand taken by the appellants. There is nothing on record to this effect. In the absence of such a finding against the input manufacturer the department cannot subsequently allege (at the time of taking of credit by the recipient factories) that differential duty so paid by the supplier units were by reason of fraud, suppression, etc., We therefore hold that the appellants herein are eligible to the credit in question. 7. Further we also note that in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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