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TMI Blog2015 (4) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... utting of the rails, under sub-heading 730290 of the Tariff and were paying on its clearances @ 15% adv. In this regard the appellant had filed a classification declaration to the Department on 15/3/97. On 23/7/97 the Deputy Commissioner, Central Excise by passing an order-in-original rejected the appellant s claim for classification of the product under heading 730290 and classified the same under heading 3810 where the rate of duty applicable is 18% adv. Accordingly from 23/7/97, the appellant started paying duty on the supply of Thermit portion to the railways @ 18% adv. The appellant, however, immediately filed an appeal to Commissioner (Appeals). The appeal filed to the Commissioner (Appeals) was disposed of vide order-in-appeal dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mainly on a tender dated 27/5/98 submitted by the appellant to the Deputy General Manager, IRCON Ltd., Bilaspur wherein they had mentioned that the excise duty applicable on the Thermit portion would be 18% adv. The amount demanded under Section 11D for the period from June 1998 to February 1999 is Rs. 21,83,849/-. 1.3 The show cause notice was adjudicated by the Deputy Commissioner vide order-in-original dated 27/2/04. The Deputy Commissioner in course of adjudication proceedings wrote to the Divisional Railway Manager, North Western Railways, Ajmer for informing about the rate at which the Central Excise duty was recovered by the appellant in respect of supply of Thermit portion and the DRM, Ajmer under his letter dated 09/2/04 enclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it only accepts the supply portion mentioning the quantity to be supplied and the rate, that in the invoices issued to the railways, though in some of the invoices issued to railways, the rate of duty is mentioned as 18% as the same was pre-printed, the duty charged from the railways in those invoices is only @ 15% adv., not 18% adv., that the letter dated 09/2/04 of DRM, Ajmer relied upon by Deputy Commissioner had never been supplied to the appellant and, therefore, there is denial of natural justice, that in the DRM s letter, the rate of duty mentioned in respect of supplies to railways has been wrongly mentioned as 18%, as in the respective invoices, the rate of duty mentioned is 15% not 18%, that on every invoice issued during this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. In our view, merely on the basis of the DRM, Ajmer s letter, the copy of which was not supplied to the appellant, it is not correct for the Department to conclude that during the period of dispute the appellant had recovered duty from railways @ 18%. 7. In view of this, the impugned order is set aside and the matter is remanded to the original Adjudicating Authority for denovo adjudication. The Adjudicating Authority should examine the invoices issued by the appellant to railways in respect of supplies of Thermit portion and verify as to at what rate the excise duty had been recovered. The demand under Section 11D would be sustainable only if the duty recovered from the railways as mentioned in the invoice had been charged @ 18% adv. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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