TMI Blog2003 (11) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance with the stay order was noted by the Bench on 26-8-2003 and the appeal was posted for hearing. We have since heard the appeal also. Nothing contained in the stay order has any bearing on the merits of the appeal in the final hearing. The miscellaneous application is infructuous. This apart, the application does not cite the provision of law invoked, nor has the Consultant been able to bring to our notice any provision of the Central Excise Act or of any Rules thereunder which could be invoked for rectification of any mistake in any interlocutory order passed by the Tribunal. Moreover, the application has been filed not by the party but by their consultant without even their affidavit. The application is dismissed. 2. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other goods also. The department objected to this and, by show cause notice, demanded duty of Excise at normal tariff rates on the non-specified goods cleared under the aforesaid invoices during the aforesaid period. The notice also proposed to levy interest on the duty as also to impose penalty on the party. The proposals were contested. The jurisdictional Commissioner of Central Excise, in adjudication of the show cause notice, confirmed against the appellants the entire demand of duty amounting to Rs. 31,06,416/- under Section 11A of the Central Excise Act and imposed on them a penalty of Rs. 15 lakhs under Rules 173Q and 226 of the Central Excise Rules. Hence the present appeal. 3. We have carefully examined the records and heard both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Ld. SDR submitted that, as early as in September, 1997 itself, the Central Excise Range Superintendent had informed the appellants that they were liable to pay the appropriate duty on the goods other than those covered under Section 3A and that the Commissioner had also informed them to the same effect by letter dated 11-9-1997. In spite of the correct legal position having been so clarified by the department, the appellants continued to clear the non-notified goods without paying duty at the appropriate tariff rates during the period of dispute. The appellants did not opt out of the Compounded Levy Scheme at any point of time during the period of dispute and hence their claim for availing the benefit of Modvat credit on inputs in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Compounded Levy Scheme. In the circumstances, we are of the view that the appellants were liable to pay central excise duty at the appropriate tariff rates on the non-notified goods cleared by them during the period 1-9-1997 to 8-3-1998. 7. In this context, we note that the appellants have a claim for the benefit of Modvat credit of the duty paid to the tune of Rs. l9,89,404/- on the inputs used in the manufacture of the goods in question. The Commissioner disallowed this claim on the ground that they had not followed the procedure for availment of Modvat credit and also had not produced any evidence of duty-paid nature of the inputs. We are of the view that, in the facts and circumstances of the present case, the Commissioner should hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty paid on the inputs used in the manufacture of the said non-notified goods requires to be re-examined in the light of the Tribunal s Larger Bench decision in Kamakhya Steels (supra). The matter is remanded for this limited purpose to the Commissioner. The appellants can adduce evidence of duty-paid nature of the inputs before the adjudicating authority. They should also be given a reasonable opportunity of being heard. The duty, correctly requantified by the Commissioner, shall be paid with interest by the appellant. 9. Regarding penalty, we note that mens rea of any kind was not alleged against the party in the show cause notice. The proposal in the SCN was to impose penalty on them for contravention of Central Excise Rules. The pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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