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2005 (9) TMI 192 - AT - Central ExciseValuation (Central Excise) - Manufacture furniture, wooden and steel falling under Chapters 44 and 94 of the Schedule to CETA - duty liability - Penalty - HELD THAT:- The appellant argued before the Commissioner that the assessable value arrived at by the Commissioner as described above should be taken as a cum-duty price as it is only after arriving at the value as decided in the case of Sri Chakra Tyres Limited v. Collector of Central Excise, [1999 (3) TMI 100 - CEGAT, NEW DELHI] case duty liability should be calculated. The other issues raised in the appeal as well as before the Commissioner are covered against the appellant in their own case as well as in the [2001 (1) TMI 189 - CEGAT, KOLKATA] and [2003 (7) TMI 155 - CESTAT, NEW DELHI]. We, therefore, reject all other contentions raised in the appeal memorandum except the one in regard to computation of proper duty (cum-duty price and computation thereof). For this purpose the matter needs to be sent back to adjudicating authority for proper computation. He shall do so after giving an opportunity to M/s. IS of being heard. On the issue of penalty under Rule 209A it was argued that the appellants did not knowingly concern themselves in dealing with goods, which are liable to confiscation and therefore no penalty should be imposed on them under 209A. As against this, the Revenue argues that M/s. Omsagar could not have entertained a bona fide belief that furniture is not excisable. They were aware of the fact that furniture ordered by them was dutiable. The said goods were being manufactured in their premises and cleared to them without payment of duty. Since we have come to the conclusion that correct duty liability of M/s. IS has to be worked out taking the sale price as cum-duty price, we cannot uphold the penalties imposed on M/s. IS and M/s. Omsagar. The Commissioner therefore has to determine the penalty after arriving at the correct duty liability. Interest u/s 11AB is not demandable as the period in dispute is prior to the introduction of Section 11AB. Thus, the order of the Commissioner is set aside and remanded to him for fresh consideration. He would give an opportunity to be heard to all the parties concerned. In the remand proceedings the Commissioner shall keep in mind our observations on the adjustment of penalty imposed on the manufacturer (M/s. IS) from the deposit made by M/s. Omsagar. The appeals are allowed by way of remand in above terms.
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