TMI Blog2015 (9) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the order under Rule 173-I of the Rules passed by the Adjudicating Authority and therefore it is not open to the appellant, in the proceedings arising from a show-cause notice, such as one in the present case, to contend that more duty was recovered from them based on the provisions of Section 4 (1), as it stood at the relevant time, of the Act. - no question of law arises for our consideration as the entire case is based on facts leading to the finalization of assessment and its consequential effect. - Decided against assessee. - C. E. A. No. 46 of 2004 - - - Dated:- 8-4-2015 - Dilip B. Bhosale And A. Ramalingeswara Rao,JJ. JUDGMENT (Per the Hon ble Sri Justice Dilip B. Bhosale) This Central Excise Appeal under Section 35G of the Central Excise Act, 1944 (for short the Act ) is directed against the concurrent judgments passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (CESTAT), the Commissioner of Customs and Central Excise (appeals); and the Deputy Commissioner, Central Excise, dated 28.05.2004, 20.08.2001 and 06.10.1997 respectively. The order of the Deputy Commissioner arises from a show cause notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench at Bangalore, and the Tribunal modified the order of the Commissioner to the extent that Bonding Gum/Repair Gum holding that it would be properly classifiable under subheading 4006.90 and the appellants were eligible for SSI exemption under Notification No.1/93 on the said product, and consequently, set aside the demand for ₹ 1,76,853/- and confirmed the order of the Commissioner (Appeals) so far as the demand for an amount of ₹ 4,41,844/- is concerned, by order dated 28.05.2004. Hence, the present appeal is filed against the order of demand for an amount of ₹ 4,41,844/- only. It is not in dispute that the assessee had filed returns under Rule 173-G of the Central Excise Rules, 1944 (for short the Rules ) and the correctness of a duty assessed by the assessee on the goods removed was scrutinized by the Proper Officer, contemplated by Rule 173-I of the Rules. It is also not in dispute that in the returns, the appellant-assessee had declared the value of the goods removed from the factory gate and the depot. The order of the Proper Officer under Rule 173-I of the Rules attained finality. In other words, the appellant did not challenge the order passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferential duty of ₹ 1,00,812/-. Further, according to the respondent, the appellant is not eligible for concessional rate of duty under the 1995 Notification during 1996-97. Thus, it was ultimately held that they are liable to pay differential duty of ₹ 3,41,032/- upto 31.05.1996. It is not in dispute that the appellant was liable to pay 25% duty out of which they had deposited 15% of the duty and for the remaining 10%, a show-cause notice was issued demanding the differential duty and also proposing to impose penalty. After receiving the reply and granting an opportunity of being heard, the Deputy Commissioner of Central Excise confirmed the demand of the duty of ₹ 4,41,844/-. In other words, the Deputy Commissioner disallowed the concessional rate of duty under 1995 Notification. The order of Deputy Commissioner was then confirmed by the Commissioner of Customs Central Excise (Appeals) vide order dated 20.08.2001 and then by the Tribunal vide order dated 28.05.2004. The Tribunal while dealing with the appeal in paragraph 13 observed thus: The second issue in this appeal is regarding the determination of aggregate value of the clearance under Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regate value of clearances of the goods. By adding the values of all the clearances as per explanation II of the Notification No.19/95 CE dated 16.3.95, the appellants have crossed ₹ 150 lakhs in the year 1995-96. Hence, the appellants are liable to pay the differential duty amounting to (Rs.1,00,812/- + ₹ 3,41,032.00) ₹ 4,41,844/- for the financial year 1995-96 and 1996-97 (upto 31.5.96). I uphold the Deputy Commissioner s order in this regard. We are in full agreement with the findings of the Commissioner (Appeals) which are correct in law. We find that the value of the clearance of Bonding Gum/Repaid Gum has been correctly included in the aggregate value of the clearances under Notification No.19/95-CE dated 16.3.95 as per explanation II to the said Notification. Therefore, the findings of the Commissioner (Appeals) as stated above are correct and duty of ₹ 4,41,844/- has been correctly demanded from the appellants. Once assessable value was accepted and declared by the appellants and was not disputed and assessments were finalized, now they cannot claim that additional demand on that value may be taken as cum duty price. Therefore the decisions relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of execution of a decree/order. In the case at hand it was specifically mentioned in the order of the Assistant Collector that the assessee may file appeal against the order before the Collector (Appeals) if so advised. In the present case, admittedly, no statutory appeal was preferred against the order under Rule 173-I of the Rules. The appellant, though did not challenge the order of assessment under Rule 173-I of the Rules, in the instant proceedings, in effect, has challenged the said order contending that they were not liable to pay the duty as determined by the Adjudicating Officer under Rule 173-I of the Rules. This, in our opinion, is not permissible in law. It is not in dispute that the show-cause notice was issued on the basis of the order under Rule 173-I of the Rules passed by the Adjudicating Authority and therefore it is not open to the appellant, in the proceedings arising from a show-cause notice, such as one in the present case, to contend that more duty was recovered from them based on the provisions of Section 4 (1), as it stood at the relevant time, of the Act. We find no question of law arises for our consideration as the entire case is based on facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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