TMI Blog2015 (11) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... extending the said benefit, the net duty leviable will be ₹ 40,38,454. Revenue contends that modvat credit against payment of CVD cannot be extended as the same had been disallowed by order-in-original dated 9.10.2011. We have seen the said order-in-original. In the said order-in-original, the Revenue has already proposed recovery of the said amount. The respondent-assessee has taken the credit of the said amount only once. We, therefore, do not see there is any adjustment of modvat credit against duty payable. Entire ship does not consist of M.S. alone and the Commissioner has given a deduction of 10% towards erections and fitments for constructing ship, cabin crew etc. The Revenue is submitting that in the calculation, a bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to consideration all the facts circumstances, I pass the following Order: (i) I confirm the Central Excise duty amounting to ₹ 28,78,138/- (Rupees Twenty Eight Lakhs Seventy Eight Thousand One Hundred Thirty Eight only) on MS scrap obtained from ship breaking manufactured cleared clandestinely by M/s. A.K. Udyog, Nallasopara under first proviso to sub section (1) of Section 11A of Central Excise Act, 1944 as shown above for the period from 28.11.1998 to 09.04.1999 order recovery under Section 11A(2) ibid after adjusting, however, the amounts paid by the assessee towards duty the Modvat credit available to them; (ii) I also Impose a penalty of ₹ 28,78,138/- (Rupees Twenty Eight Lakhs Seventy Eight Thousand One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abetting the assessee its Proprietor in their day-to-day working also for receiving the MS scrap without duty paying documents not recording the receipts, thereby facilitating the evasion of huge amount of Central Excise duty. However, I refrain from imposing penalty on M/s. Vishwas Steel Limited, Tarapur, Dist: Thane as no positive evidence has been brought in the SCN against them due to its closure. The impugned SCN is disposed off accordingly. 2. Further, the duty payable i.e. ₹ 28,78,138/- was computed as per the details given in the table in para 25.5.4. In brief, the Commissioner has confirmed the demand of ₹ 56,48,791/- and further taken a view that the respondent-assessee has paid a duty of ₹ 20,128 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or constructing the Ship's cabin crew etc by observing it as an accepted fact that entire ship of 5960 MT was not consisting of M.S. In this connection the adjudicator has not taken into consideration the allowance of 326.740 MT given for Firewood. Though he has observed that there is no documentary evidence to support the contention of the assessee that it contained 326.740 MT Firewood The duty on the Firewood is not demanded in the Show Cause Notice. 7.4 In view of the fact, it appeared that the adjudicating authority should have confirmed the entire demand of ₹ 6620706/- and should have appropriated the amount of ₹ 10,00,000/- paid by the assessee. only from the confirmed amount. The adjudicator should have ordered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal for non-compliance of Section 35F of the Central Excise Act, 1944. The respondent-assessee then preferred an appeal with this Tribunal. This Tribunal, vide order No. CB/279-80/2002/WZB dated 13.11.2002, disposed of the appeal with the direction to the appellant to deposit the amount of ₹ 4.50 lakhs within a period of six weeks from the date of the order and if the amount is not paid within the time granted, the appeal will stand dismissed and the Commissioner s order under challenge will stand confirmed. The assessee has not paid the said amount. 4. The learned counsel for the respondent-assessee has orally stated that they had filed an appeal against the said order before the Hon ble High Court and the Hon ble High Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we agree with the contention of the Revenue that this has resulted in the adjustment of the paid amount twice. We, therefore, order that the duty paid should be considered as ₹ 10,00,000/- + ₹ 6,10,337/- (Rs.17,50,525/- - ₹ 11,40,188/-) extending the said benefit, the net duty leviable will be ₹ 40,38,454/-. 8. The Revenue has also filed appeal on the grounds that modvat credit against payment of CVD cannot be extended as the same had been disallowed by order-in-original dated 9.10.2011. We have seen the said order-in-original. In the said order-in-original, the Revenue has already proposed recovery of the said amount. The respondent-assessee has taken the credit of the said amount only once. We, therefore, do n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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