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TMI Blog2010 (12) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3 of the Central Excise Act, 1944 can be adjusted against the amount of 8% of the value of exempted goods under erstwhile Rule 57CC of Cenvat Credit Rules, 1944? (ii) Whether the Central Excise duty liability on S.S. Patta Patti ordered to be adjusted against payment of 8% of the value of exempted goods is legally correct?" 2. The respondent-assessee is a manufacturer of stainless steel circles which are either cleared on payment of duty or used in manufacture of utensils. The assessee claimed benefit of notification No.67/95-CE dated 16.3.1995 for captive use of raw material in manufacture of stainless steel circles on the ground that final product was exempt from duty. Vide order dated 26.4.2002, duty demand was raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strictly in accordance with the directions contained in the aforesaid CESTAT order in as much as the adjustment had to be allowed of duty already paid, whereas here the adjustment has been allowed not against duty but against the amount paid @ 8%. The revenue has pleaded that there is plethora of legal pronouncements holding that the amount paid under Rule 57CC is not duty. In this connection, it is observed that the Commissioner (Appeals) vide Order-in-Appeal No.456/AGK/PCK/03 dated 11.09.03 and 492/AGK/PCK/03 dated 19.09.03 had directed that the duty liability on hot rolled patta patti would be adjusted to the extent of duty already paid by way of adjustment of Modvat/Cenvat Credits. But the Revenue has not filed appeal against the said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be demanded the duty. While directing so we also keep in mind that revenue has not gone in appeal against the order of adjudication allowed by the Ld. Adjudicating Authority. In absence of appeal by revenue, the relief granted by lower authority cannot be denied. Therefore, the assessee should get relief granted by lower appellate authority." 4. We have heard learned counsel for the appellant. 5. It is not disputed that in the earlier round of litigation, the order of the adjudicating authority, allowing adjustment, was never put in issue by the revenue. This being the position, the view taken by the Commissioner and the Tribunal that the same could not be challenged in second round of litigation, cannot be held to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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