TMI Blog2017 (10) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ty with a direction to allow cum-duty price benefit and compute the demand accordingly - appeal allowed by way of remand. - E/ORS/10487/2016-DB, E/492/2008-DB - A/12760/2017 - Dated:- 29-9-2017 - D. M. Misra, Member (Judicial) And Mr. Devender Singh, Member (Technical) For the Appellant : Mr. Devan Parikh K. Vyas ( Advocates For the Respondent : Mr. L. Patra (A.R.) ORDER Per: Dr. D.M. Misra This is an appeal filed against order in original No.4/Commr/2008 dated 14.03.2008. 2. Briefly stated the facts of the case are that demand notice was issued to the appellant on 08.05.1998 proposing recovery of duty or ₹ 22,18,287/- from the appellant alleging that they have wrongly availed benefit of SSI exemption Notification No.01/93-CE dated 01.03.1993, as amended, by not correctly disclosing their gross turnover value, inasmuch as, the clearance value was distributed among three dummy units floated by them for the said purpose. On adjudication, the demand was confirmed with equal amount of penalty on the appellant and penalties on the Directors and Partners of the said units. Aggrieved by the said order of the adjudicating authority, the appellants pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has referred to the judgments of K.M. Mathew Vs State of Kerala - 1992 (57) ELT 370 (SC), CCE Bangalore Vs Tubular bag Manufacturing Co. - 1998 (97) ELT 481 , Southern Petrochemicals Indus. Corp. Vs C.C. Madras - 1998 (99) ELT 151 and R.K. Herbals vs State of Tamilnadu - 2010 (251) ELT 514 (Mad.) It is his contention that since in the Show Cause Notice as well as in the order in original the demand was confirmed under wrong tariff heading, hence the entire demand may be set aside. 4. Further, he has submitted that the Ld. Commissioner has also erred in not extending the benefit of cum-duty-price, in computation of the demand, even though specifically directed by this Tribunal in the remand order dated 15.09.2005. He submits that the Ld. Commissioner has wrongly applied the judgment of the Hon ble Supreme Court in the case of Amrit Agro Vs Industries Ltd. Vs CCE Ghaziabad - 2007 (210) ELT 183 (SC) and Tribunal in Sarla Polyester Ltd. Vs CCE Surat-II - 2008 (222) ELT 376 (Tri. Amd), which are not relevant to the fact of the present case. 5. Per contra, Ld. AR for the Revenue, on the other hand, has submitted that in the first round of litigation before this Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also their plea that the cum-duty-price benefit was erroneously not extended to them. Considering the said issues, this Tribunal remanded the case to the adjudicating authority for the specificpurpose of re-computation of demand limiting it onlyto parts and components manufactured and cleared by the appellant M/s Aero Dynamics (P) Ltd .; and considering the value as cum-duty-price. The remand order of the Tribunal is specific on these two issues, therefore, raising the issue of leviability of duty on parts and components of the humidification plant,in our opinion, at this stage of second round of litigation before this forum cannot be sustained.Further, from the observation of the Tribunal in confirming the penalty imposed against the other appellants, holding that the appellant had improperly availed benefit of Notification by not including the value of parts and components of humidification plants cleared in the name of the dummy units, in the gross clearance value of M/s Aero Dynamics (P) Ltd., the main appellant, it is clear like day light that the Tribunal has held that the goods manufactured by the Appellant are definitely leviable to duty, but the quantum of duty was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while arriving at the demand. The details of all the invoices under which the goods manufactured by M/s Aerodynamics (P) Ltd. during the year 1994-1995 and cleared under the invoices of M/s Aero Dynamics Pvt. Ltd. have also been summarized and enclosed as Annexure- C . (For the sake of simplicity no value has been shown for re-sale items). Shri Kapadia has clearly stated in his statements that these invoices are for the goods manufactured by them and cleared without payment of duty. Same is the position for all other computations shown as Annexure A . None of the invoices forall these years on the basis on the basis of which demand has been quantified, describes the value being of whole humidification plant. On the contrary these invoices clearly spell out description of the parts/ components for which the invoice was raised and value shown therein is for that parts/ component. Furthermore, from the perusal of these invoices it is seen that the buyers shown therein are M/s. NachmoPolyplast Ltd., Nachmo Air system, etc. It is relevant to mention here that M/s Aerodynamics Pvt. Ltd. were never erecting any humidification plant on site. The goods manufactured by them and alongwith th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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