TMI Blog2015 (10) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issue has been remanded by the Hon'ble Supreme Court in the case of Vardhaman Industries Ltd. (2008 (3) TMI 51 - SUPREME COURT) is in different context and in any case the Hon'ble Supreme Court has not said that the corrugation will not amount to manufacture. Moreover, we find that the said judgment is of 2008 while the dispute in this case pertains to the period of 1997. No judgement passed during 1996 or 1997 has been produced to support the contention. - However, penalty is reduced - Decided in favour of assessee. - Appeal No. E/2025/05- Mum - - - Dated:- 15-9-2015 - Shri P.K. Jain, Member (Technical) And Shri S. S. Garg, Member (Judicial) Ms. Manasi Patil, Advocate : For The Petitioner Shri Sanjay Hasija, Supdt. (AR) : For The Respondent ORDER Per: P.K. Jain: The brief facts of the case are that the appellants are engaged in manufacturing of corrugated galvanised sheet from plain galvanised sheet. A demand notice was issued to the appellant for payment of duty on the corrugated galvanised sheets. Appellants were not paying the duty on the ground that the activity does not amount to manufacture. The case was adjudicated. The Commissioner conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that as early as 1973 in the case of Sri Durga Hardware Stores Hon'ble High Court of Andhra Pradesh has taken the view that corrugation improves the utility of the raw material and by this process they do not lose their essential character. Ld. counsel also submitted that the judgement of the Hon'ble Supreme Court in Gujarat Steel Tubes Ltd. 1989 (42) ELT 513 (SC) wherein the Hon'ble Supreme Court has taken the view that galvanisation does not bring in new commodity into existence. He further submitted that thereafter number of judgments of the Punjab Haryana High Court and this Tribunal has held holding that corrugation amounts to manufacture. However, the Hon'ble Supreme Court in the case of Vardhaman Industries Ltd. 2008 (224) ELT 342 (SC) has kept the issue open and remanded the matter for denovo consideration. Thus the issue whether activity amounts to manufacture or not has not reached finality and hence no penalty is imposable. 3. Ld. AR on the other hand, submitted that the Explanation 1 to Section 11A makes it very clear that where the duty determined to be payable is reduced the date of such determination shall be the date on which the amount of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Official Gazette on such duty from the date immediately after the expiry of the said period of three months till the date of payment of such duty : Provided that where a person chargeable with duty determined under sub-section (2) of Section 11A before the date on which the Finance Bill, 1995 receives the assent of the President, fails to pay such duty within three months, from such date, then, such person shall be liable to pay interest under this section from the date immediately after three months from such date, till the date of payment of such duty. Explanation 1. Where the duty determined to be payable is reduced by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or, as the case may be, the Court, the date of such determination shall be the date on which an amount of duty is first determined to be payable. Explanation 2. Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or, as the case may be, the Court, the date of such determination shall be,- (a) for the amount of duty first determined to be payable, the date on which the duty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first order. That is because even if the duty is reduced there is still an order of determination but a reduced amount. By Explanation 2 where duty payable is increased or further increased two situations are set out. For the amount of duty first determined to be payable it is the date on which the duty was first determined and in so far as the increase of duty is concerned, the date on which the increased amount of duty is payable. So also in the case of further increase the date of the order on which the amount is further increased. The Explanation, therefore, gives the intent of the Legislature. The intent of the Legislature appears to be that in a case of increase of duty, the increased tax becomes payable not from the original date, but from the date on which it is increased and in the case of reduction it relates back to the first date. 17. What is the effect of setting aside the original order and remanding the matter for de novo consideration. Setting aside an order would mean that there is no order and a party is relegated to fresh adjudication. The stage of an adjudication cannot be said to be a determination. An adjudication will culminate in an order. That order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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