TMI Blog2001 (3) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... of time on that day the appeals were adjourned and the next date noted by the authorised representative of the applicants was 17-9-1998 instead of 16th September, 1998 for which the appeals were adjourned; that on 17th September, 1998 when they came for hearing they came to know that these appeals were listed for hearing on 16-9-1998 and the appeals were heard in their absence on merit and the Order had been reserved for pronouncement. He, further, mentioned that Miss Ismita Ekka, Manager of the applicant company, explained the circumstances in which the applicants could not be present on 16-9-1998 and requested the Bench for allowing them to file the written submissions; that the Bench expressed inability to intervene in the matter which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter on merit the appeals were rejected by the Tribunal and the order was not reserved for pronouncement, only the detail order was to be issued subsequently; that as the order was pronounced in the open court after hearing the question of considering written submissions filed subsequently does not arise. He, further, submitted that the Appellants had not claimed the Modvat credit if the duty was held to be payable by them. What was mentioned in para 3 of the Tribunal s Final Order was the contention of the Appellants that as the duty paid by Engineering Division would have been taken as Modvat credit by the Tractor Division there was no loss of revenue to the Government; that accordingly there was no error apparent on the face of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not reserved after hearing the matter on merit on 16-9-1998 as it was pronounced in the Open Court; that the appeals were rejected. Only detail order was subsequently issued by the Tribunal. Accordingly the question of considering any written submission filed by the applicants could not have been considered by the Tribunal after rejecting the appeals as it has become functus officio. We do not find substance in the contention of the learned Sr. Counsel that by not considering the availability of the Modvat credit an error has crept into the Final Order of the Tribunal. From the perusal of the prayers made in the memorandum of appeal we observe that no such prayer about the availability of the Modvat was made. The only prayers made were that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SPD of M/s. Escorts Ltd., in the replacement market, were assessed to duty on the price at which these were sold in the replacement market. The procedure adopted by the appellants was perfectly in order and no objection had been raised right from 1986 onward, even by audit parties. All the facts were thus known to the proper officers and nothing has been suppressed, concealed or mis-stated with intent to evade payment of duty. The short levy alleged in the show cause notice could not be taken as due to the reasons of fraud, collusion, mis-statement or suppression of facts. Neither the extended period contemplated under Section 11A(1) proviso, was applicable nor penalty could be imposed under Rule 173Q of the said Rules on the appellant. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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