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2016 (4) TMI 444 - CESTAT MUMBAI

2016 (4) TMI 444 - CESTAT MUMBAI - TMI - Demand of duty and imposition of penalty - Revenue has not filed any appeal against order in original - Held that:- the revenue cannot go beyond the duties demanded and penalties imposed in the said order. The Commissioner in the impugned order has gone much beyond that by not only increasing the demand four fold but also enhanced the penalties many fold. Thus the commissioner's order is not proper. Therefore, the impugned order is set aside and the mat .....

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present case, proceedings against the appellants were initiated by issuing a show-cause notice dated 8.6.1989. The allegation in the show-cause notice is that M/s Central Cables (P) Ltd., the appellants are engaged in the manufacture of electric wires and cables falling under Chapter sub-heading 85.44 of the Central Excise Tariff Act, 1985 and filed declaration under Rule 57G of the Central Excise Rules for taking modvat credit of the duty paid on inputs under Rule 57A of the Rules. In the decl .....

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d on inputs and manufactured and cleared copper and aluminium wires are the concessional rate of duty as per Notification No. 175/86 dated 1.3.1986 as amended. M/s Central Cables Pvt. Ltd. being the recipient of copper and aluminium wires from job workers took enhanced modvat credit a s per the provisions of para 5 of the Notification No. 175/86 read with Rule 57B of the Rules. The adjudicating authority held that the transaction between the job workers and the appellants M/s Central Cables (P) .....

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unal and the Tribunal vide final order dated 24.12.2002 allowed the appeals filed by the appellants and set aside the demand. Revenue challenged the order before the Hon'ble Bombay High Court and Hon'ble High Court vide order dated 13.10.2010 in Central Excise Reference No. 4/2003 set aside the order passed by the Tribunal and remanded the matter to the Tribunal. In pursuance of the remand order passed by the Hon'ble Bombay High Court, the Tribunal vide order dated 23.2.2011 again se .....

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igh Court vide order dated 24.2.2012 directed the Tribunal to take a fresh decision on all questions as formulated in para 6 of Hon'ble Bombay High Courts judgment dated 13.10.2010. For ready reference, para 6 of the judgment dated 13.10.2010 is reproduced below: - 6. The question as to whether the Central Cables (P) Ltd. had transferred the raw materials to the job workers, if transferred the goods for manufacture of intermediate product, then how the job worker could take credit of duty p .....

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below. If the job worker was not liable to pay excise duty while returning the manufactured goods to the supplier of raw materials, then the question of the supplier of the raw materials claiming full credit under Rule 57B of the Central Excise Rules, 1944 does not arise at all 2. Vide the aforesaid order No. A/947 to 950/12/EB/C-II dated 17.10.2012, the Tribunal ordered as follows: - 8. We find that on the issue framed by the Hon'ble Bombay High Court on which the matter has been remanded, .....

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fter setting aside the impugned order to decide the issue afresh after affording an opportunity of being heard to the appellants. 9. As the show-cause notice was issued in the year 1989, therefore the adjudicating authority is directed to decide the issue preferably within six months from the date of receipt of this order. 3. In pursuance of the aforesaid observations, the Commissioner has passed an order confirming demand of Central Excise duty amounting to ₹ 32,88,873/- and also confirme .....

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Central Excise, Nagpur as to why: - (i) the penalty should not imposed upon them individually under Rule 17e of Central Excise Rules, 1944. (ii) total duty of ₹ 32,88,873/- short paid by Noticee No. 2 to 4 should not be recovered from them under Rule 9(2) read with proviso to Section 11A of the Central Excise Act, 1944 Or (iii) Inadmissible notional modvat credit taken and utilized of ₹ 32,88,873.82 should not be recovered from noticee No. 1 under Rule 57A read with proviso to Sectio .....

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a penalty of ₹ 1,50,000/- on M/s Central Cables (P) Ltd. under Rule 137Q of Central Excise Rules, 1944. Further, I impose a penalty of ₹ 25,000/- on M/s Omega Scientific, Nagpur, M/s Vidarbha Cables, Nagpur and M/s Central Capacitors, Nagpur under Rule 173Q read with Rules 209A of the Central Excise Rules, 1944 Thus in the first order in original the commissioner had a) Confirmed demand of duty/ credit reversal of ₹ 16,44,416.91/- b) Imposed penalty of ₹ 1,50,000/- on M/ .....

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per. 5. The remand order clearly stated the specific points on which the commissioner was to give his findings. In the impugned order, the Commissioner has identified the issues to be decided as follows: - (i) Whether the Noticee No. 2 to 4 have acted as Job workers of Noticee No. 1 or as an independent manufacturer. (ii) Whether Noticee No. 2 to 4 are eligible for availing SSI benefit or otherwise. (iii) Whether the Noticee No. 1 was eligible to endorese the duty paying documents in favour of N .....

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his findings in respect of para 6 of the Hon'ble Bombay High Court judgment dated 13.10.2010. The very first question raised in that relates to: - 6. The question as to whether the Central Cables (P) Ltd. had transferred the raw materials to the job workers, if transferred the goods for manufacture of intermediate product, then how the job worker could take credit of duty paid by Central Cables (P) Ltd. on raw materials purchased from MMTC under actual user conditions has not been considered .....

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