TMI Blog2010 (4) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... Serial No. 1) - Held that: - we have found no justification for demand of duty from the assessee for the period during which classification list No. 53/83 ibid was in force inasmuch as this classification list was duly approved by the Assistant Collector and such approval was ultimately sustained by this Tribunal - mill board boxes and mill board cartons were exempted from payment of duty, if made wholly out of mill board as per serial number (1) of the table annexed to the notification Explanation to the notification defined “mill board” - Admittedly, mill board used in the above boxes was having kraft paper pasted thereon. Consequently, the item in question did not qualify for the benefit of exemption in terms of serial number (1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities have demanded total amount of duty of Rs. 14,34,187/- for the said period and have imposed equal amount of penalty on the assessee. The assessee had filed classification list No. 53/83 effective from 18-4-1983 describing the goods as Printed Boxes made out of duty-paid mill board pasted with duty-paid kraft paper on which proforma credit has not been availed , and classifying the same under Tariff Item No. 17(3) of the Old Central Excise Tariff Act. This classification list also claimed the benefit of exemption from payment of duty on the printed boxes under Notification No. 279/82-C.E. dated 22-11-1982 (Serial No. 1). The classification list was approved by the Assistant Collector. However, the Assistant Collector, by order-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee by virtue of the approval given to their classification list by the Assistant Collector. No appeal was filed by the Revenue against the said final order of the Tribunal. 2. A series of show-cause notices came to be issued covering the period April, 1983 to October, 1985, seeking to recover duty on the printed boxes manufactured and cleared by them during the said period. These show-cause notices maintained that the benefit of the above notification was not admissible to the noticee. These notices also proposed to impose penalty on them under Rule 173Q of the Central Excise Rules 1944. The demand of duty and the proposal for penalty were contested. In adjudication of the dispute, the Assistant Commissioner held against the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the above boxes was having kraft paper pasted thereon. Consequently, the item in question did not qualify for the benefit of exemption in terms of serial number (1) of the table annexed to the notification. In this scenario, the amount of duty to be recovered from the assessee needs to be re-quantified by the original authority. 4. A penalty was imposed on the assessee under Section 11AC of the Central Excise Act read with Rule 173Q of the Central Excise Rules, 1944 and Rule 25 of the Central Excise Rules, 2002. As rightly submitted by the learned counsel, Section 11AC was not invoked in any of the show-cause notices. There is a demand of interest on duty under Section 11AA/11AB of the Act also on the assessee. In this connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to invoke the rule which was not invoked in the relevant show-cause notice. We have heard the learned SDR on the issues relating to interest and penalty also. 5. Having considered the submissions, we find that the penal provision which was not invoked in show-cause notice was not to be pressed into service by the lower authorities. Section 11AC was, therefore, illegally invoked. This provision was, even otherwise, not applicable inasmuch as the entire period of dispute was prior to the date on which Section 11AC came into force. It is, also, settled law that there can be no composite penalty under different penal provisions. The lower authorities chose to impose a composite penalty under Section 11AC, Rule 173Q (1944) and Rule 25(2002) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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