TMI Blog2018 (2) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... e face of the record, which requires rectification and we proceed to do so accordingly. Ld. counsel has made contentions that the issue has been clarified by the DGFT and Director (Cost) in their favour. We however find that these communications may not have been available to the adjudicating authority - as the Tribunal has already remanded the matter to the adjudicating authority, we modify the order by making additional directions to the said authority to also consider the dispute regarding clause (ii) and (iii) of Sl. No.3 of Notification No. 23/2003, taking into account the submissions put forth by both the sides. ROM application dismissed - E/ROM/40181-40184/2016 And E/018/2008, E/325/2008, E/130/2010, E/134/2010 - Misc. Order N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B value, whether Special Additional Duty (SAD) to be considered while calculating the rate of duty of Central excise under section 3 (1)of Central Excise Act for the clearances made to their sister unit on inter unit stock transfer; Whether the goods are not exempted from VAT by the State Government and (4) the last issue is whether education cess and higher secondary education cess to be considered thrice while calculating the rate of duty of central excise under section 3910/(5) whether the appellant is liable for penalty under section 11AC in respect of first appeal and liable for penalty under Rule 25 in respect of other three appeals. 3. These appeals were disposed by the aforesaid Final Order No.41542 to 41545/2015 dated 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e foreign exchange. (h) Sale of by-products included in the LOP/LOI in the DTA subject to achievement of NFEP. Sale of by-products by units not entitled to DTA sales or beyond the entitlements of paragraph 6.8 (b) shall also be permissible on payment of full duties. 9. Of the above, clearances under category (a), (b), (d) (h) alone are eligible for exemption as per clause (ii) of the condition number 3 to the Notification No. 23/2003-CE. 10.1 It is respectfully submitted that it appears that the Hon ble CESTAT in its Final Order supra (para 20)has given a wrong finding that there is no dispute on either side insofar as clause (ii) and (iii) of condition No.(3) of Notification No.23/2003 while the demand on this count i.e. sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forth in the ROM applications. He takes to para 20 of the impugned final order wherein the Tribunal has observed that:- insofar as clause (ii) and (iii) there is no dispute on either side and the dispute is in respect of clause (i) of condition No. (3) i.e. whether the goods are manufactured wholly from the raw material produced or manufactured in India . The ld. AR submits that this is an incorrect observation and that this aspect was very much in dispute all throughout and has been raised by the department in the show cause notices and also in the orders passed by the adjudicating authority. The ld. AR submits that the Tribunal has proceeded on a wrong premise that the department had no dispute insofar as clauses (ii) and (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y reference:- 31. In view of the foregoing discussions, we hold that (i) in respect of appeal E/18/2008 duty demanded by denial of exemption No.20/03 is set aside to the extent and remanded to the adjudicating authority. The adjudicating authority to complete the proceedings as per the direction contained in this order at para (25) within a period of 3 months from the date of receipt of this order. It is needless to state that the appellant to be given reasonable opportunity and follow principles of natural justice. The appellants are directed to produce all the records and evidence before the authority. (ii) In respect of demand on adoption of FOB Value for DTA sale, S.A.D. and Higher Secondary Cess in all the four appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances, we are of the considered opinion that the interests of justice would be served by taking note that the department is still in dispute insofar as clause (ii) and (iii) of Sl. No.3 of Notification No.23/2003 is concerned. However, as the Tribunal has already remanded the matter to the adjudicating authority, we modify the order by making additional directions to the said authority to also consider the dispute regarding clause (ii) and (iii) of Sl. No.3 of Notification No. 23/2003, taking into account the submissions put forth by both the sides. We make it clear that this rectification will apply only to E/ROM/40181/2016 in Appeal No. E/18/2008. 10. We also find merit in the submission made by ld. consultant for the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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