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2015 (9) TMI 203 - ANDHRA PRADESH HIGH COURT

2015 (9) TMI 203 - ANDHRA PRADESH HIGH COURT - 2015 (322) E.L.T. 249 (A. P.) - Demand of differential duty - SSI exemption under Notification No.1/93 - Whether the Tribunal is justified in upholding the order of the lower authority despite the fact that there is no estoppel against the statutes and it is always open to the appellant or an assessee to adopt the correct assessable value in terms of Section 4 (1) (a) of the Central Excise Act, 1944 for the purpose of computing the clearances in ter .....

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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. - .....

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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 issued under Section 11A (1) (1A) of the Act, whereby the appellant-assessee was called upon to show cause as to why; a. an amount of ₹ 1,00,812/- being the differential duty at the .....

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ng No.4006.10 instead of 4006.90 as claimed by the assessee and also an amount of ₹ 1,76,853/- being the duty payable on bonding gum for the clearances made during the financial year 1995-96 and in the year 1996-97 (upto 31.05.96) should not be demanded under the C Ex Rules 1944 read with Section 11A of CESA 1944 and d. A penalty should not be imposed on them under Rule 173Q and 226 of C Ex Rules 1944 for contravention of Rule 9 (I), 52A, 173B, 173C, 173F, 173G and 226 of C Ex Rules, 1944. .....

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gum/Repair gum under Chapter sub-heading No.4006.10 of CETA 1985, and confirm the duty demand of ₹ 1,76,853/- payable for the clearances during the years 1995-96, 1996-97 (upto 31.05.96). However, as the above said amounts were already paid by M/s.Vamshi Rubber Ltd., I hereby order that the said amount shall be adjusted towards duty confirmed. Against the said order, an appeal was preferred to the Commissioner of Customs & Central Excise (Appeals), Hyderabad, who confirmed the order o .....

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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 .....

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ppellantassessee and learned counsel for the Revenue and with their assistance, gone through the entire material placed before us. Though, the appellant raised several questions, as substantial questions of law, in the memorandum of appeal, this Court while admitting the appeal, framed the following question for consideration: Whether the Tribunal is justified in upholding the order of the lower authority despite the fact that there is no estoppel against the statutes and it is always open to th .....

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n in view of the order under Rule 173-I of the Rules, whereby the value of clearance for the products was determined and in the absence of challenge to the order, the question of its re-determination does not arise. It is also pertinent to note that the instant proceedings are only in the nature of consequential proceedings and not the main proceedings arising from the order of assessment. It would be relevant to mention few facts that are relevant for taking such view. Appellant is the manufact .....

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7; 150 lakhs as provided for in the 1995 notification. In view thereof, according to the respondents, the appellant was not eligible for concessional rate of duty during the year 1995-96 for the clearance in excess of ₹ 150 lakhs and that they are liable to pay differential 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 .....

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ty 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 Notification No.19/95-CE dated 16.03.95. Th .....

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said value without any dispute and the assessments were finalized. Therefore at this stage they cannot come up for re-opening an issue which is already settled. The Commissioner (Appeals) in his order has rightly given the findings which are as under: 9. I have considered the submissions made by the appellants. I find that the assessable value of all the goods have been arrived at by the appellants themselves before hand and the Central Excise duty was paid by them accordingly. The assessments h .....

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llants failed to do. It is now too late in the day for the appellants to turn around and dispute the assessable values which were declared only by themselves and on which the duty was paid by them voluntarily and the RT 12 returns have also been finalized accordingly by the Department. Therefore, for all practical and legal purposes, the issue for redetermination of assessable values is closed and cannot be reopened now. There cannot be a situation where one value is adopted for the purpose of c .....

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ted 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 bee .....

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e taken as cum duty price. Therefore the decisions relied upon by them for taking the sale price as cum duty price are not applicable on the facts and circumstances of the present case. In this connection, we would like to refer to the judgment of the Supreme Court i n Collector of Central Excise, Kanpur, vs. Flock (India) Pvt. Ltd. wherein the Supreme Court was considering the question that in a case where the Assistant Collector of Central Excise passes an order classifying a product under a p .....

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ute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and .....

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