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2015 (4) TMI 811 - CESTAT NEW DELHI

2015 (4) TMI 811 - CESTAT NEW DELHI - TMI - Demand of differential duty - Classification under heading 730290 or under heading 3810 - Rate of duty - 18% or 15% - Held that:- Department s allegation that during the period from June 1998 to February 1999, the appellant while paying duty to the Department @ 15% in respect of clearances of Thermit portion had recovered from customer railways @ 18% is based only on one tender document dated 27/5/98 to M/s IRCON wherein the rate of duty applicable in .....

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ancelled and modified as 15% and accordingly the duty had been charged @ 15% only. 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%. - Matter remanded back - Decided in favour of assessee. - Excise Appeal No. 2136 of 2006 - Final Order No. 51028/2015 - Dated:- 26-3-2015 - Hon ble Shri Rakesh Kumar, .....

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ng 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 o .....

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date they paid duty on the clearances of Thermit portion @ 15% adv. by classifying the same under heading 7302.90. The Revenue filed an appeal to the Tribunal against the Commissioner (Appeals) s order. The Revenue s appeal was decided by the Tribunal dated 3/2/2000 by which the Tribunal held that the Thermit portion is classifiable under heading 3810 of the Tariff. The Tribunal, however, held that the differential duty would be recoverable only for normal period of limitation from the relevant .....

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% adv. while they have paid the duty to the Department @ 15% adv. and accordingly they would be liable to pay excess duty recovered from the customers to the Government. This allegation by the Department was based 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 Feb .....

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of it was reported that the excise duty charged is @ 18% adv. Relying on this report of DRM, Ajmer, the Deputy Commissioner confirmed the demand under Section 11D. On appeal being filed to Commissioner (Appeals) against this order, the Commissioner (Appeals) vide order-in-appeal dated 27/1/06 dismissed the appeal. Against the above order of the Commissioner (Appeals), this appeal has been filed. 2. Heard both the sides. 3. Shri Rahul Tangri, C.A., the learned Counsel for the appellant, pleaded .....

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y on a tender submitted by the appellant to M/s M/s IRCON under their letter dated 27th May 1998 wherein the rate of duty applicable in respect of supplies of Thermit portion is mentioned as @ 18%, that this rate has been mentioned in the tender as the tender had been sent on 27th May 1998 i.e. before the receipt of the order-in-appeal passed by the Commissioner (Appeals), that the tender acceptance letter of M/s IRCON does not mention the rate of duty, and it only accepts the supply portion men .....

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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 period to railways, the duty had been charged only @ 15% and not 18% and that in view of this, the impugned order is not correct. 4. Shri Ranjan Khanna, learned DR, defended the impugned order by reiterating the findings of the Commissioner in it and pleaded that the letter dated 09/2/04 of .....

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