TMI Blog2019 (5) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... N.N. Prabhudesai, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal is directed against order in original No. 7/2008 dated 19.05.2008 of Commissioner Central Excise Mumbai IV. By the said order passed in remand proceedings Commissioner has held as follows: 30 I confirm the duty amounting to ₹ 30,49,975/- (Rupees Thirty Lakhs Forty Nine Thousand Nine Hundred and Seventy Five Only) for the period 1983-84 to 1986-87 and ₹ 12,51,428/- (Rupees Twelve Lakh Fifty One Thousand Four Hundred Twenty Eight Only) for the period 1987-8 and 1988-89 (upto 22.04.1988) under Section 11A(2) of the Central Excise Salt Act, 1944. 31. I impose penalty of ₹ 50,000/- (Rupees Fifty Thousand only) on M/s Standard Mill Co under rule 173Q(1), 9(1), 52(A), 210 226 of Central Excise Rules, 1944. (a) The confirm amount of ₹ 30,49,975/- shall be appropriated against an amount of ₹ 30 lakhs ₹ 2 Lakhs cash security deposited with Bond by the assessee. (b) An amount of ₹ 12,51,428/- shall be appropriated agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of redemption fine of ₹ 8,00,000/- and imposed a penalty of ₹ 50,000/- The said order of Collector was set aside by tribunal vide its order dated 21st December 2005 and matter was remanded back to Commissioner for fresh consideration. 2.5. Tribunal has while remanding the matter made following observations: The lower authority has held that the fabric is coated fabric on the ground that 60% of the surface of the fabric is coated with dots. The appellants have pleaded that the Hon ble High Court of Allahabad and Gujarat [vide J D Patel and Another vs UOI - 1978 ELT (J540)] have held that in coating the intention would be to cover virtually the entire surface of the material sought to be coated and that the process which leaves a considerable area uncovered would not be called coating. We find merit in the contention off the appellants and their reliance on the cited case laws. Hence we are of the view that the impugned material cannot be considered as coated fabric. 2. As regards valuation, it is the claim of the appellants that for the earlier period, following the Tribunal decision in their own case, the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and duty. 3.3 Arguing for the revenue learned Authorized representative submitted- a. That the duty demand has been computed by the Commissioner in terms of the remand order of the tribunal after taking into account the relevant annexures to the Show Cause Notice. b. It is not correct to say that the duty demanded is not the differential duty, because during the relevant periods as is evident from the annexures to show cause notice that appellants had not paid any duty in respect of these clearances. c. Commissioner has in the present case taken into account all the relevant factors and has determined the duty payable. d. Appellants have not substantiated their claims towards the so called errors pointed out by them in determination of duty demand. 3.4 When the matter was heard on 28.11.2018, Counsel for appellant sought time to ascertain whether the duty was paid on the impugned fabric at the time of clearance, to substantiate his claim that total duty was demanded instead of differential duty. When matter was again heard on 11.12.2018 he sought further time to ascertain the same. Finall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te value of the impugned goods for the purpose of determination of duty payable on the impugned goods. Such value addition approximately comes to 3.2% of fabric value per L.Mtr. (vi) that the Annexures to the Show Cause Notice do not provide figures of duty paid by them during 1983-84 to 1986-87 and since the same are not readily available with them, the figures of differential duty can be arrived at by multiplying the total quantity of linear meter by the cost of powder per linear meter to arrive at total value of powder that has escaped assessment. It was claimed that by doing so the differential duty cannot be more than ₹ 8,73,563.00. On perusal of Annexure-B-I B-II of the Show Cause Notice, it is evident that during the period 1983-84 to 1985-86, they have not paid duty as seen from Sr.No.9 of Annexure B-I. However, the duty is paid for the year 1986-87 as can be seen from Annexure B to O-I-O No.5/2003 dated 31.3.2003. Therefore, only for this year i.e. 1986-87 duty payable now is required to be reworked out on cost of DAN powder. In view of the above the duty payable is worked out to ₹ 43,01,403/- as detailed below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants to this effect. 4.4 We also find that by the order dated 31.03.2003, Commissioner had imposed penalty of ₹ 50,000/- on the Appellant stating I impose penalty of ₹ 50,000/- (Rs Fifty Thousand) on M/s Standard Mill Company under Rule 173Q, 9(1), 52(A), 210 and 226 of Central Excise. This penalty was completely set aside by the tribunal by its order 21st December 2005 while remanding the matter for quantification. (Refer para 3 of the order dated 21.12.2005, reproduced in para 2.5 above). Once the said penalty was set aside we do not find any justification on the part of Commissioner to impose the same penalty again. While imposing the penalty this time Commissioner has again stated I impose penalty of ₹ 50,000/- (Rs Fifty Thousand) on M/s Standard Mill Company under Rule 173Q(1), 9(1), 52(A), 210 and 226 of Central Excise Rules, 1944. Since penalty was set aside by the earlier order of Tribunal we are not in position to uphold the imposition of penalty this time. 5.1 The impugned order of Commissioner is modified to the extent of setting aside the penalty imposed by him. Appeal is disposed of accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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