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2018 (7) TMI 1360 - AT - Central ExciseProduction capacity based duty u/s 3A - Clandestine manufacture and removal - 'Banarsi Ashiq' brand Deshi Pan Samigri - non-notified goods - excess of stock - Whether the duty of ₹ 1,40,82,789/- have been rightly demanded on 8,17,75,733 pouches of Banarsi Ashiq Brand Deshi Pan Samigri, manufactured and removed without payment of appropriate Central Excise Duty under Section 11A(4) of the Act alongwith equal amount of penalty under Section 11AC of the Act read with Rule 25 of CER, 2002 on the appellant K.K. Tobacco Company? - whether penalty has been rightly imposed under Rule 26 of CER, 2002 on the other two appellants? Held that:- It is an admitted fact that the goods manufactured by the appellant namely 'Banarsi Ashiq' brand Deshi Pan Samigri is not a notified goods under the notifications under Section 3A of the Act - Although the learned Commissioner have not referred to Section 3A, but evidently the duty have been worked out and confirmed on the basis of the production capacity based levy, which is untenable and is fit to be set aside. SCN not sustainable - appeal allowed - decided in favor of appellant.
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