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2016 (11) TMI 191 - MADRAS HIGH COURT

2016 (11) TMI 191 - MADRAS HIGH COURT - TMI - Demand - Imposition of penalty - Compounded Levy Scheme - CTD bars, falling under Chapter heading 72 of the Central Excise Tariff Act, 1985 - Held that: - The Tribunal, while directing the Commissioner to fix the ACP, has set aside the penalty also. Penalty, as such, cannot be imposed, in the light of the decision of the Hon'ble Supreme Court in Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise[2015 (11) TMI 1172 - SUPREME COURT], .....

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9-8-2016 - MR. S.MANIKUMAR MR. D.KRISHNA KUMAR, JJ. For Appellant : Mr. A.P. Srinivas, Senior Standing Counsel For Respondent : Mr. K. Jayachandran COMMON JUDGMENT (Judgement of this Court was made by S.MANIKUMAR, J.) Civil Miscellaneous Appeals are directed against the order of the Customs Excise and Service Tax Appellate Tribunal, Chennai, dated 09.03.2005 in Final Order Nos.362 and 363 of 2005, by which, the Tribunal has remanded the matter to the Adjudicating Authority, with certain observat .....

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. On the basis of the assessee's letter and upon the visit of the factory by the Central Excise Officials for verification and also based on the technical opinion of Dr.L.Vijayaraghavan, Professor in IIT, the Commissioner of Central Excise, Chennai-II, fixed the ACP of the assessee as 34693.43 MTs., as per the HRMACD Rules, 1997, for discharging duty, under Rule 96ZP(3) of the Central Excise Rules, 1994. The same was communicated to the assessee, through letter in C.No.IV/16/95/97, dated 30. .....

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2000, remanding the matter to the Commissioner of Central Excise, for denovo consideration, with a direction to re-fix the ACP, through a speaking order. 4. Subsequently, the Commissioner, after following due course of law, passed Order-in-Original No.16 of 2001 in C.No.V/72/30/38/2000 CLS - Tech, dated 30.08.2001, fixing the ACP of the assessee as 34,693.43 MTs., and also adjudicated the show cause notices, issued from September' 1997 to March' 2000 and demanded the differential duty pa .....

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09.03.2005, ordered as follows: "7. After carefully examining the submissions, we find that the appellants have a valid challenge against the demand of duty. Admittedly, the demand is squarely based on the ACP as communicated by the Assistant Commissioner to the assessee. That ACP was set aside by this Tribunal and hence, could not have been valid basis for a demand of duty on the assessee. The ACP determined by the Commissioner under Rule 5 of the ACD Rules, 1997 is the one which has been .....

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nce in setting aside the demand of duty confirmed by the Commissioner in adjudication of show-cause notices issued prior to determination of ACP by him. 8. We find that Ld. Commissioner has treated the appellants' furnace to be of the pusher type, relying on the first verification report of Prof.L.Vijayaraghavan of IIT, Madras. That was a report submitted by Prof.L.Vijayaraghavan after verifying the parameters of the furnace in the presence of the jurisdictional Assistant Commissioner of Cen .....

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t he certified it to be of the 'batch type' after a second verification of parameters. We are at a loss to comprehend as to how an expert of the stature of Prof.L.Vijayaraghavan can take such a volte face without stating cogent reasons for it. Suffice to say that the expert, by this conduct, brought discredit to both the reports. In this backdrop, we agree with the counsel's suggestion that a second opinion be obtained and considered by the Commissioner. Again, the Commissioner, havi .....

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ge succeeds as the demand of duty has been set aside. 9. In the result, we set aside the impugned orders and allow the appeals by way of remand, directing Ld. Commissioner of Central Excise to determine afresh the ACP of the appellant's furnace for the period of dispute in accordance with law and in terms of this order." 6. Being aggrieved by the same, the appellant has preferred the present Civil Miscellaneous Appeals. Record of proceedings shows that on 05.10.2005, both the appeals ha .....

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f IIT gave a verification certificate, dated 02.09.1997 as a member of committee and gave a contradictory opinion, dated 11.01.2001, only on the request of the assessee behind the back of the Department?" 7. Mr.A.P.Srinivas, learned Senior Standing Counsel for the appellant submitted that the finding of the Tribunal that since ACP was set aside by its first remand order and there is no valid basis for demand of duty, is incorrect, as the Tribunal, in the first remand order, only asked the C .....

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t, as the assessee themselves have declared their furnace "pusher type", vide their declaration, dated 11.07.1997 and the said declaration was verified by the Assistant Commissioner along with Dr.L.Vijayaraghavan, in the presence of authorised signatory of the assessee and a verification report, dated 02.09.1997, was given by him as a member of the Committee. However, on the request of the assessee, the same expert Dr.L.Vijayaraghavan, gave a contradictory opinion 9. Learned senior sta .....

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