TMI Blog2017 (8) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... ies were not disclosed to the department and were found out only after in depth investigation and verification of private records and therefore there was suppression of relevant information , is a correct finding. We do not find any infirmity in the same - appeal dismissed in toto. - Appeal No. E/922/1999 - Final Order No. 41740 / 2017 - Dated:- 9-8-2017 - Ms. Sulekha Beevi C.S. Member ( Judicial ) And Shri Madhu Mohan Damodhar, Member ( Technical ) None For the Appellant Shri K.P. Muralidharan, AC (AR) For the Respondent ORDER Per Bench The appellant is a manufacturer of pressure cookers and vacuum flasks and other stainless vessels / restaurant items which are exempted products. During the visit of the departmental officers, it appeared that certain modvat inputs like SS coils and capital goods like Elgi screw compressors, compressor air drier were used in the manufacture of exempted products. It also appeared that appellant had developed tools and dies which became dutiable from 1.3.94 to 15.3.95 and consumed the goods captively without payment of duty. After due process of adjudication, the Commissioner vide impugned order dt. 3.3.99 made the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Penalty unlike duty is not automatic. It calls for discharge of proof of a higher degree which is conspicuous by its absence. In the circumstances the learned authority erred in imposing penalty is therefore bad in law. 5. On the other hand, Ld. A.R, Shri K.P. Muralidharan, supports the adjudication. He further submits that Commissioner has gone into all aspects of the matter raised in the SCN and has arrived at reasoned findings and conclusions. 6. After careful reading of the judgment of Hon ble High Court of Madras dt. 06.11.2014 referred to supra, and especially paras 5 to 8, the legal issues that remains for de novo consideration, as directed by the Hon ble Court, are as follows : (a) Whether the reversal of credit to the extent of ₹ 8,01,644/- in respect of 0.40 mm, 0.50 mm and 0.63 mm coils relatable to Annexure-III is correct ? (b) Whether the demand of duty of ₹ 11,17,500/- relatable to Annexure-IV with regard to the claim that there was no exemption in respect of tools and dyes which were manufactured and consumed in the factory during the period from 1.3.1994 to 15.3.1995 is correct ? (c) On the issue relating to Annexure-III, a spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aman, Manager which has not been subsequently retracted. Further confirmation of the use of these coils for exempted export products was also culled out from records during the investigation. Only based on these facts, was the demand of ₹ 11,61,312/- proposed in the SCN for the period from 18.03.94 to 07.02.96. The adjudicating authority has addressed this controversy in paras 18 to 21 of the impugned order. He has taken into account the contention of the appellant that modvat credit to the extent of ₹ 3,59,668/- should be excluded directly from the demand since inputs have been used in the manufacture of dutiable goods. Adjudicating authority has also analyzed in detail the Annexure IIIA, submitted by the appellant in adjudication, based on the same lines of Annexure III prepared by the department. He has weighed the contentions of appellant concerning details invoices evidencing clearances of cookers and files on payment of duty to the extent of 2569.270 kgs. Based on these contentions and the arguments of the appellant he has conceded that duty credit of ₹ 3,59,668/- involved in about 20428.378 kgs. of coils need not be reversed and in fact reduced the demand p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n used to produce items of cookware prior to 1.3.94; that further 64 nos. of dies valued at ₹ 60,00,000/- were used to manufacture 8 types of items dispatched as sample pieces to their export purposes; that assessee has also used six dies for manufacture of 3 items which were in use before 1.3.1994.Evidence produced by assessee with respect to 2 dies that were, according to them, used only after 16.3.98,has also been accepted by the adjudicating authority. Only after such elaborate analysis, has the adjudicating authority whittled down the original demand of ₹ 51,09,014/- in respect of dies as proposed in Annexure-IV to the show cause notice, to ₹ 11,17,500/- for the period 1.3.94 to 16.3.95. From the impugned order, it is clear that even this reduced duty demand has been arrived at based on the data and evidence submitted by the assessee themselves. We hold that the manner and method of calculation in respect of this demand of ₹ 11,17,500/- cannot be faulted. We are therefore of the considered opinion that the demand of ₹ 11,17,500/- relatable to Annexure-IV is correct. 5.3 (c) On the issue relating to Annexure-III, a specific plea has been taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.4 (d) As far as the duty demand in respect of exemption claimed for tools and dyes is concerned, the assessee raised a plea in paragraph (5) of the grounds of appeal before the Tribunal as follows : 5. The appellants submit that exemption notification No.67/95, dated 16.3.1997 is clarificatory in nature and therefore retrospective in operation. In the circumstances no duty is leviable on tools and dies. Order confirming the demand is therefore bad in law. The exemption notification 67/95-CE, in our considered opinion, cannot by any stretch of imagination be considered as retrospective in operation. The said notification was brought into effect from 16.03.1995 for the first time and subsequently it was amended by amending notifications like 20/96, 11/97 59/97 32/2000 and so on. This being so, there can be no argument on the prospective effect of the notification or for that matter there is no indication in the notification that the benefit extended therein is available for earlier periods also. Viewed in this light, we are afraid that there is no merit in this legal plea put forth by the assessee. 5.5 (e) Even in respect of limitation, despite a specific plea taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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