TMI Blog2009 (5) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... . Agarwal, SDR, for the Respondent. [Order]. Certain inputs on which Modvat credit had been taken by the appellants were removed as such to their sister concern, viz. M/s. Ispat Metallics Ltd., without reversing the credit or following the procedure prescribed under the relevant rules [Rule 57F(3) and Rule 57AB of the Central Excise Rules, 1944]. This removal of goods took place during the period from 4-4-2000 to 6-8-2001. The appellants reversed the credit in their CENVAT account on 15-1-2002 at the instance of the department. Subsequently, on 18-10-2004, the department issued a show cause-cum-demand notice directing the party to show-cause why :- 1. Penalty should not be imposed on them under Rule 173Q of Central Excise Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst this decision of the lower appellate authority. 2. Heard both sides. The learned Counsel submitted that the lower appellate authority s order is not in terms of the directions issued by the Tribunal in the above remand order inasmuch as the assessee s plea that the order-in-original travelled beyond the scope of the show-cause notice was not duly considered. He further argued that, as the show-cause notice did not contain any proposal for determining or demanding duty under Section 11A of the Act, the demand of duty raised by the original authority required to be set aside as it was beyond the scope of the show-cause notice. The same argument was put forward in respect of the demand of interest under Section 11AB. In the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 11AC. 4. After giving careful consideration to the submissions, I note that the case was remanded by this Tribunal to the lower appellate authority in the earlier round of litigation, for fresh decision on all issues. One specific direction issued to the lower appellate authority was to consider the assessee s plea that the order-in-original had travelled beyond the scope of the show-cause notice by confirming demand of duty of Rs. 1,53,394/- and appropriating the payment of this amount towards such demand. The learned Commissioner (Appeals) has held that the original authority determined the above amount as payable by the assessee and that the confirmation of demand is correct and legal. Apparently, this finding of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be beyond the scope of the show-cause notice. It is also noteworthy that the allegation of the department that the assessee had contravened various provisions of the rules with intent to evade payment of duty was not successfully contested by them. In the circumstances, the requirements of Section 11AC were met. The same is the case with Section 11AB. Therefore, neither the penalty nor the demand of interest on duty is liable to be contested on the ground that there was no determination of duty in this case. As rightly pointed out by the learned SDR, the latest decision of the Apex Court on the question whether penalty under Section 11AC could be waived in a case where duty was paid prior to issue of show-cause notice appears to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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