TMI Blog2000 (12) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the appeals are on the following grounds :- (a) The two appeals are filed by the assessee company, a texturiser of man made yarn and its Managing Director against Order-in-Original No. 15/97, dated 28-11-1997 passed by the Commissioner, determining (i) confirming a demand of Rs. 1,03,74,135/- towards BED and Rs. 18,56,119/- towards SED under Rule 9(2) of the Central Excise Rules, 1944 read with proviso to Section 11A of the Central Excise Act, 1944 and Section 3 of the Additional Duties of Excise (Textiles Textile Articles) Act, 1978 and adjusting the amount of Rs. 10,25,000/- towards BED and Rs. 1,55,750/- towards AED which has already been paid towards the duty amount payable along with the interest under Section 11AC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulations. We shall smuggle as long as we are not caught, once caught, we ask for Modvat credit" Since they were not unaware of the scheme and were not estopped from availing the scheme, they cannot be granted the benefit of the case law cited by them. In view of Mihir Textiles Ltd. case 1997 (92) E.L.T. 9 (S.C.), they cannot be granted the Modvat benefit. (vii) The contravention under Rules 9(1), 52A, 173F, 173G and 226 was established and penalty was called for under Rules 9(2), 52A, 173Q and 226 and Section 11AC. (b) Our findings are as under :- (i) There is no finding or allegation that POY, procured from M/s. Sanghi and texturised and cleared without duty determination thereon was non-duty paid. In fact the SCN and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . - 1994 (71) E.L.T. 1049. (ii) Not only we find that Modvat credit eligibility will be required to be worked out but the demand on the final texturised yarn and its value may need not be worked out for purposes of duty and turnover by applying the Supreme Court decision on the appeal of Modvat credit on Valuation in the case of Dai Ichi Karkaria [1999 (112) E.L.T. 353 (S.C.)]. (iii) for the above purposes, the orders are required to be set aside and remanded for determination of the actual amounts of duty to be payable and thereafter a re-determination of penalty is required to be arrived at under Rules 9(2), 52A and 226. (iv) We find that Section 11AC has been placed in the law only on 29-9-1996 and for the demands of duty evade ..... X X X X Extracts X X X X X X X X Extracts X X X X
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