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2010 (4) TMI 947 - AT - Central ExciseBenefit of N/N. 279/82-C.E. dated 22-11-1982 - Printed Boxes made out of duty-paid mill board pasted with duty-paid kraft paper - The assessee had filed classification list No. 53/83 effective from 18-4-1983 describing the goods as “Printed Boxes made out of duty-paid mill board pasted with duty-paid kraft paper on which proforma credit has not been availed”, and classifying the same under Tariff Item No. 17(3) of the Old Central Excise Tariff Act. This classification list also claimed the benefit of exemption from payment of duty on the printed boxes under Notification No. 279/82-C.E. dated 22-11-1982 (Serial No. 1) - Held that: - we have found no justification for demand of duty from the assessee for the period during which classification list No. 53/83 ibid was in force inasmuch as this classification list was duly approved by the Assistant Collector and such approval was ultimately sustained by this Tribunal - mill board boxes and mill board cartons were exempted from payment of duty, if made wholly out of mill board as per serial number (1) of the table annexed to the notification Explanation to the notification defined “mill board” - Admittedly, mill board used in the above boxes was having kraft paper pasted thereon. Consequently, the item in question did not qualify for the benefit of exemption in terms of serial number (1) of the table annexed to the notification. In this scenario, the amount of duty to be recovered from the assessee needs to be re-quantified by the original authority. Penalty u/s 11AC - Held that: - the penal provision which was not invoked in show-cause notice was not to be pressed into service by the lower authorities. Section 11AC was, therefore, illegally invoked - This provision was, even otherwise, not applicable inasmuch as the entire period of dispute was prior to the date on which Section 11AC came into force. It is, also, settled law that there can be no composite penalty under different penal provisions. The lower authorities chose to impose a composite penalty under Section 11AC, Rule 173Q (1944) and Rule 25(2002), which exercise is not permissible in law. The order for levy of interest and imposition of penalty are set aside and the original authority is directed to re-quantify the amount to be recovered from the assessee - appeal allowed by way of remand.
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