TMI Blog2015 (10) TMI 2352X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand of duty and set aside the imposition of penalty. - The 2nd appeal deals with adjustment of the above demand and penalty against a sanctioned refund. In view of the vacation of penalty the appellant s succeed in their appeal insofar as adjustment of penalty against the sanction of refund is concerned. They ve become entitled to refund of the penalty amount adjusted earlier. - Appeal disposed of. - APPEAL No.E/59 & 60/07 - - - Dated:- 11-8-2015 - Mr.Anil Choudhary, Member (Judicial) And Mr. Raju, Member (Technical) For the Petitioner : Shri.Gajendra Jain, Advocate For the Respondent : Shri.Sanjay Hasija, Supdt. (AR), ORDER Per: Raju 1. The appellants have filed two appeals. The appellants are manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion lays down that cess being collected as additional duty of customs is eligible for credit. thus the issue is substantially different in this case. The appellants also relied on the decision of Honble Supreme Court in case of Orient fabrics 2003 (158)ELT 545 wherein the following has been held: 5. In order to appreciate the issue, it is relevant to set out the sub-section (3) of Section 3 of the Act, as applicable in this matter and which runs as under : SECTION 3 : Levy and collection of additional duties : (1) (2) (3) The provisions of the Central Excises and Salt Act, 1944 and the rules made thereunder including those relating to refunds and exemptions from duty shall, so far as may be apply in relation to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the rules made thereunder, including those relating to refunds, exemptions from duty, offences and penalties, shall, so far as may be, apply in relation to the levy and collection of the additional duties as they apply in relation to the levy and collection of the duties of excise on the goods specified in sub-section (1). 8. A comparison of the amended provisions with the un-amended ones would clearly demonstrate that the words offences and penalties have consciously been inserted therein. The cause of action for imposing the penalty and directions of confiscation arose in the present case in the year 1987. The amended Act, therefore, has no application to the facts of this case. 3. It was argued that no interest or penalty ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) must necessarily be projected in Rule 8(1) and the expression `duty of excise in Rule 8(1) must be read in the light of that definition, the same expression used in these two notifications issued under Rule 8(1) must also be interpreted in the same sense, namely, duty of excise payable under the Central Excises and Salt Act, 1944 and the exemption granted under both these notifications must be regarded as limited only to such duty of excise. But the respondents contended that the expression `duty of excise was one of large amplitude and in the absence of any restrictive or limitative words indicating that it was intended to refer only to duty of excise leviable under the Central Excises and Salt Act, 1944, it must be held to cover all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , used specific language indicating that the exemption, total or partial, granted under each such notification is in respect of excise duty leviable under the Central Excises and Salt Act, 1944. But, merely because, as a matter of drafting, the Central Government has in some notifications specifically referred to the excise duty in respect of which exemption is granted as `duty of excise leviable under the Central Excises and Salt Act, 1944, it does not follow that in the absence of such words of specificity, the expression `duty of excise standing by itself must be read as referring to all duties of excise. It is not uncommon to find out that the legislature sometimes, with a view to making its intention clear beyond doubt, uses language ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excises and Salt Act, 1944 as envisaged in Rule 2 clause (v). It cannot in the circumstances bear an extended meaning so as to include special excise duty and auxiliary excise duty. 5. He also pointed out that no interest has been demanded in the order in original. 6. We have carefully considered the arguments and the case records. We find that so far as availability of exemption is concerned the matter is settled by the decision of Honble Supreme Court in case of Modi rubber Limited (supra) in favour of the revenue. We also find that so far as invocation of provisions relating to penalty are concerned the law has been laid down by Honble Supreme Court in case of Orient fabrics (supra) against the revenue. In view above we uph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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