TMI Blog2017 (1) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of that illegality but a judicial mind should confine that illegality to the past without compounding that illegality for all time to come. Subjecting that decision to review and appeal with the sole purpose of perpetuating that illegality bespeaks impropriety. We find that the impugned order cannot be held to have travelled beyond the notice or has conferred a benefit on an assessee sans a procedure in law. As the duty was not leviable, a demand for further recovery of a duty not leviable is without authority of law and must fail - appeal dismissed - decided against Revenue. - E/CO/3/06 AND E/3430/05-MUM - A/85002-85003/17/EB - Dated:- 30-12-2016 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e determined, the best judgement rule in Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 1975 was invoked and the differential duty for the period May 1996 to March 2001 was computed as ₹ 47,28,551 for recovery under section 11A of Central Excise Act, 1944 from M/s Crescent Catalyst Chemicals along with interest and penalty imposed under rule 173Q of Central Excise Rules, 1944/section 11AC of Central Excise Act, 1944. Penal provisions were also sought to be invoked against Shri Ajit V Mehta and M/s Lubrizol India Ltd all in notice dated 1st June 2001. 3. Another proceeding, not connected with the present one before us, had been initiated against M/s Lubrizol India Ltd for charging duty on waste filter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order leading to this appeal, we do not find it necessary to refer to those submissions in detail. 6. It is contended that the adjudicating authority had wrongly attributed a finality to the order of the Commissioner of Central Excise, Belapur on the excisability of waste filter cakes which had been reviewed by Central Board of Excise Customs on 9th February 2005. While that may be so, Learned Counsel points out that order-in-original no. 5/LTU/MUM/AJV/JC/2012-13 dated 19th February 2013 of Joint Commissioner of Central Excise, LTU, Mumbai in the matter of Lubrizol India Ltd has elaborated on the disposal of the appeal of Revenue on the very same matter referred by the reviewing committee as having attained a finality; in this ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity has dropped proceedings is the eligibility to exemption available to solvent extraction industry in notification no. 115/75-CE dated 30th April 1975. Revenue, and its Learned Authorised Representative, contends that M/s Crescent Catalyst Chemicals had been paying duty after classifying their product and they could have challenged the duty liability instead of paying the duty. It is further submitted, by relying on the decision of the Hon'ble High Court of Madhya Pradesh in M/s Design Auto Systems Ltd v. Commissioner of Central Excise Customs, Indore [2004 (170) ELT 269 (MP)] that appellant is not eligible for benefit of an exemption that has not been claimed by them for years. Relying on the decision of the Hon'ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very by alluding to an excess recovery on the same goods. Such a claim does not adjudicate upon the duty already levied but is limited to protesting the allegation of short-recovery. That is all that has happened here and it is to that fact that the adjudicating authority has drawn attention. When the duty already collected is in excess of that leviable, there is no basis for the taxman to allege further short-recovery. The adjudicating authority does not, in doing so, set aside the duty already paid. 10. The reference to the decision in re Perfect Latex Pvt Ltd to allege illegality of action on the part of adjudicating Commissioner is indicative of a less than wholesome comprehension of the role of a tax administrator and an uninfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond the notice or has conferred a benefit on an assessee sans a procedure in law. 12. As the duty was not leviable, a demand for further recovery of a duty not leviable is without authority of law and must fail. The appeal of Revenue is dismissed. We would also urge the Central Board of Excise Customs to undertake a capacity building programme to enable a responsible discharge of the power of review by the authorities subordinate to it so that the ends of law legality and propriety of adjudication and appellate orders are met and is not mere knee-jerk reaction to orders that are perceived as detrimental to Revenue. The interests of the State are not furthered by excess collection of revenue but by proper collection of tax as authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X
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