9911796707
TMI Blog2000 (11) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... metal is extracted from alumina in the second stage and the metal is made into billets thereafter. The aluminium billets are then used for the manufacture of a variety of extruded products in the extrusion plant. The entire quantity of billets manufactured by the appellants are not so captively consumed in the manufacture of final products (extruded products). A part of the billets production is removed from the factory on payment of duty for home consumption. During the period, 1991-92 to 1996-97 (upto 9-7-1996), the appellants manufactured and cleared 138.278 MTs of aluminium billets for captive use in the manufacture of extruded products which were supplied to M/s. Artificial Limbs Manufacturing Corporation for use in the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med demand, directed the appellants to pay the differential amount of Rs. 1,44,435.32. The adjudicating authority, further, imposed a penalty of Rs. 20,000.00 on the appellants under Rule 173Q. The decision of the Additional Commissioner was upheld by the Commissioner (Appeals) in the appeal filed by the assessees. Hence the present appeal of the assessees before the Tribunal. 3. It appears, the Department felt that the penalty imposed on the assessees by the Additional Commissioner was inadequate and that mandatory penalty under Section 11AC of the Central Excise Act ought to have been imposed on the assessees. The Department, therefore, preferred appeal to the Commissioner (Appeals), but the latter rejected the Departmental appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit reversed as above ought to have been accepted by the "Department as part of payment of duty on the billets captively consumed. Therefore, the decision of the lower authorities not to reckon the above reversal of Modvat credit as part of payment of duty on the billets cleared for captive consumption during the period of dispute was erroneous. Ld. Counsel, further, submitted that since the entire amount of duty had been paid up before the issuance of the SCN, there was no justification for imposition of penalty. 6. Ld. JDR Shri Sanjeev Srivastav reiterated the cross-objections as well as the findings of the lower authorities. 7. We have carefully examined the submissions. We find that there is no dispute, at this stage, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to take Modvat credit of the duty paid on the inputs utilised for the manufacture of the billets. Thus Modvat credit to the extent of Rs. 1,42,003.06 was available to the assessees and the debit of the said amount in their RG.23 Pt. II must be treated as payment towards duty on the billets. 8. Since the assessees had paid, without protest, the entire amount of duty on the billets captively consumed, by way of deposit of Rs. 15,14,245.85 and reversal of credit of Rs. 1,42,003.06 before the issuance of the SCN in acknowledgement and acceptance of liability for payment of duty on the goods, their plea of limitation cannot be sustained. 9. In the context of considering the question of imposability of penalty, we find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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