TMI Blog2007 (7) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... at Mumbai (in short the 'CESTAT'). 2. As common points are involved, they are taken up together for disposal. 3. So far as Appeal Nos. 5317-5318/2002 are concerned they relate to order passed by CEGAT in Appeal No. E/566/02-Bom. Appeal No. 5318 of 2002 relates to rejection of the application for rectification filed. Appeal No. 7098 of 2005 relates to Appeal No. E/3617/04-MUM. For convenience the factual position in Civil Appeal Nos. 5317-18 is noted: 4. Paper Products Ltd. the appellant was engaged in the manufacture of printed flexible packaging laminates and pouches. The printing of these goods is done by means of printing cylinders. These cylinders were being manufactured by Helio Gravure, Thane, a division of Paper Products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 5-5-1999 or exemption Notification 49/87 dated 1-3-1987. The Tribunal noted that those contentions had not been raised before the adjudicating authority observed that these stands would require factual investigation and felt that the controversy should be decided by the adjudicating authority and, therefore, remanded the case to the adjudicating authority for deciding on the two issues what is the correct rate of duty chargeable and correct amount of differential duty payable and the correct amount of penalty imposable passed orders with regard to the remand proceedings by order dated 31-10-2001. The said order was challenged before CEGAT. 5. In his order, the Commissioner took the stand that the order of the Tribunal, and the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cost of printing cylinder". While it noted in Paragraph 8 in accordance with the view taken in Flex Industries case (supra) that the cost of Cylinder must be reflected in the assessable value of the final product over a considerable period by amortizing the most, it stressed again that the appellant before it had no case before the adjudicating authority and the costing of cylinder had been amortized. It specifically stated in Paragraph 12 the matter was being remanded to the adjudicating authority for passing a fresh order after deciding the two aspect, what is the correct rate of duty, if any, chargeable, the correct amount of differential duty, if any payable, and the correct amount of penalty. 7. The CEGAT found that the terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i and Ors. [AIR 1971 SC 2177]. It was observed at Para 9 as follows: "9. Lastly, counsel urged that now the Suit has been remanded to the trial Court for reconsidering the plea of res judicata, the appellant should have been given an opportunity to amend the written statement so as to include pleadings in respect of the fraudulent nature and antedating of the gift deed Ext. P-3. These questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as pointed out by the High Court, any suit on such pleas is already time- barred and it would be unfair to the plaintiff-respondents to allow these pleas to be raised by amendment of the written statement at this late stage. In the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicata." 11. Above being the position, there is no merit in these appeals which are dismissed, so far as levy of duty is concerned. However, considering the factual scenario the penalty is reduced to Rs. 5 lakhs from Rs. 10 lakhs. 12. So far as Appeal No. 7098 of 2005 is concerned, the primary stand is that the Commissioner at Hyderabad has accepted the stand of the assessee appellant. But it appears in the instant case the admitted position was that there is a separate charge. CESTAT's order makes the position clear. The relevant portion of CESTAT order reads as follows: "(ii) With reference to show cause notice dated 23-6-1994, the reply vide letter dated 26 July 1994 (Page 159). It was stated that the printing cylinders are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The cost of the metal cylinder is amortized in the flexible packaging laminate products. (b) Amortization is also done for the Artwork and the design work that are incorporated in the Cylinder." 13. It is to be noted that the Commissioner had adjudicated 23 show cause notices covering the period from 7-9-1993 to 31-3-2000. Earlier these notices were adjudicated vide Order in Original No. 31 /2001 Commr. M VI dated 3-10- 2001 against which Appeal No. E/568/02 Mum was filed. The appeal was disposed of by the CEGAT with the following observations: "The counsel of the appellant contends that identical issue, the inclusion in the cost of manufacture of finished goods i.e. printed plastic sheets, the cost of cylinders and a part recove ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
