TMI Blog2019 (9) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... as urged by the Appellant in respect of unfinished goods between Unit No.1 and Unit No.2. The question be decided on merits. The appeal of the Appellant is restored before the Tribunal to be considered. - CENTRAL EXCISE APPEAL NO. 142 OF 2019 - - - Dated:- 11-9-2019 - M.S. SANKLECHA AND NITIN JAMDAR, JJ. Mr. Bharat Raichandani with Pragya Koolwal i/b. UBR Legal for the Appellant. Mr. Pradeep S. Jetly with Mr. J.B. Mishra for the Respondent. JUDGMENT: (Per Nitin Jamdar, J.) The Appellant has filed this appeal under section 35G of the Central Excise Act, 1944 challenging the order passed by the Customs, Excise and Service Tax Appellate Tribunal dated 26 November 2018. By the impugned order, the Tribunal dismissed the appeal filed by the Appellant challenging the order passed by the Commissioner of Central Excise and Sales Tax, Mumbai dated 18 August 2010 imposing penalty and confirming the demand made against the Appellant. 2. The questions urged by the Appellant as question of law are as under: (a) Whether in the facts and circumstances of the present case, the Tribunal was correct and justified in up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice was issued to the Appellant on 26 February 2008. The notice called upon the Appellant to show cause as to why demands specified therein be not recovered from the Appellant. In respect of Unit No.1, the total duty demanded for the period from April 2003 to March 2004 is ₹ 54,99,975/-. This demand of duty was on the finished goods. The total demand of duty for the period from April 2004 to March 2005 is ₹ 1,06,53,742/- and it was also on finished goods. The total amount of duty demanded for the period from March 2003 to November 2005 is ₹ 1,02,09,326/-. This demand of duty was on intermediate products manufactured by Unit No.1 and cleared to Unit No.2. The total demand of duty for the period from 2003-04 to 200506 was ₹ 33,84,989/- being the credit taken on the inputs received from Unit No.2. 6. The show-cause-notice alleged that Unit No.2 had paid this amount in excess of the duty payable on the goods cleared to Unit No.1 and is not eligible to avail this amount as Cenvat Credit. In respect of Unit No.2, the total demand of duty for the period from April 2003 to March 2004 is ₹ 9,02,463/-. This demand of duty was on finished goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by itself, cannot absolve the Appellant from the demand and levy of penalty. This Court in the case of The Commissioner of Central Excise Customs v. Shri Ram Alluminium Pvt. Ltd. 2009 (242) ELT 202 (Bom) has considered the provisions of section 11A of the Act of 1944. The Division Bench considered the issue as to whether payment of duty before issuance of show-cause notice can be a valid ground of defence for the assessee. Considering the fact that this issue would arise in large number of matters, the Division Bench considered the question in extenso. The Division Bench followed the judgment of the Supreme Court in the case of Union of India v. M/s. Rajasthan Spinning Weaving Mills 2009 (239) ELT 3 (SC). The Division Bench rejected the argument that if the amount is paid before the issuance of show-cause-notice or after show-cause-notice, there is no requirement for determination. In case of Commissioner of Central Excise v. Prudential Spinners Ltd. 2011 (267) ELT 291 (SC) , the Supreme Court laid down that even if the duty which was short paid was deposited at the first instance even before the show-cause-notice is issued, it cannot alone be a ground for not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of lacquered film. It is the case of the Appellant that the clearance of polyester film of Unit No.1 being available to Unit No.2 as Cenvat credit, the transaction was revenue neutral. The Appellant has taken this categorical ground in the grounds of appeal before the Tribunal. 14. The Tribunal, in the impugned order in paragraph-3.2(i), has referred to the argument of the Appellant on transactions between Unit No.1 and Unit No.2 as revenue neutral and that whatever difference paid by one unit was available as Cenvat credit to other unit. The reliance of the Appellant on the decision in the case of SRF Ltd v. Commissioner of Central Excise 2007 (220) ELT 201 (T), has been noted. Thereafter, in the discussion, the Tribunal has not referred to this contention of the Appellant at all. 15. The learned counsel appearing for the Respondent-Revenue has sought to rely upon the findings of the Commissioner in the order-in-original to contend that there was a suppression on the part of the Appellant. However, he is not able to demonstrate that this specific ground was considered by the Tribunal. 16. The learned counsel for the Appellant has relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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