TMI Blog2012 (4) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... al No.395/06 - - - Dated:- 1-3-2012 - SHRI S. K. GAULE, DR. D. M. MISRA, JJ. Shri J. P. Khaitan, Sr. Advocate for the Applicant (s) Shri D. K. Nath, Dy. Commr. (A.R.) for the Department Per Dr. D. M. Misra : The present appeal is filed by the appellant against the Order-in-Appeal No. 44/Kol.IV/06 dated 28.2.06 passed by Commissioner of Central Excise (Appeals), Kolkata-IV. 2. The facts of the case in brief are that the appellants are the manufacturer of glass bottles which were supplied to soft drinks manufacturers. The said soft drinks manufacturers provide plastic crates to the appellant in which the bottles were ultimately supplied by the appellant. The appellant had availed credit of duty on the plastic crat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was directed to be paid on the said amount of Rs.18,21,106/- and penalty of Rs.18,21,106/- was imposed under Section 11AC of the Central Excise Act, 1944. 3. Aggrieved by the said order, the Appellant filed an appeal before the Commissioner (Appeals). The ld. Commissioner (Appeals) after following the ratio of the Hon ble Supreme Court s decision in the case of Dai Ichi Karkaria Ltd. (supra) has held that the excise duty paid on the plastic crates is not includible in the assessable value of the final product. However, he has upheld that the demand of duty in so far as the sales tax and transportation charges are concerned. Further, he has observed that since the amount of duty has already been paid , it met the requirement of Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) has dropped the inclusion of excise duty element in the cost of glass bottles and accordingly, dropped the demand of Rs.18,21,106/- involved on such element of excise duty. However, he has erred in imposing penalty of Rs.2,87,743/- under Section 11AC of the Central Excise Act, 1944, which was dropped by the adjudicating authority and no appeal has been preferred by the Department against the said order of the adjudicating authority. 5. The ld. A.R. (Dy.Commr.) for the Department reiterates the findings of the lower authorities. 6. Heard both sides and perused the records. We find that the adjudicating authority has imposed a penalty of Rs.18,21,106/-under Section 11AC of the Central Excise Act, 1944 even though he has confirmed C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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