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TMI Blog2023 (12) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 173 Q of the Central Excise Rules 1944. However I give an option to redeem the varnished paper on payment of redemption fine of Rs. 1,00,000.00 (ii) Seizure of un-printed laminated sheets, numbering 6984 valued at Rs. 13000.00. seizure of three wheeler No, UP1439016 and seizure of carton boxes valued at Rs. 1,20,861.00 is ordered as vacated; (iii) Central Excise duty on laminated sheets amounting to Rs. 36,081.00 is confirmed under Sec. 11A of the Central Excise Act-1944; (iv) Interest at appropriate rate on the amount of duty confirmed above is ordered to be demanded under erstwhile Sec 11AB of the Central Excise Act 1944; (v) Penalty of Rs. 36081.00 is imposed upon the party under Rule 173(Q) of the Central Excise Rules 1944 read with section 11AC of the Central Excise Act 1944; (vi) A penalty of Rs. 1,00,000.00 is imposed on Sh. Jatinder Shroff, under erstwhile Rule 209A of the Central Excise Rules 1944. (vii) A penalty of Rs. 50,000.00 is imposed on Sh. Mukul Mandiratta under erstwhile Rule 209A of the Central Excise Rules 1944; (viii) Rest of the proceedings other than detailed above, initiated against the party under this show cause notice are ordered to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944 should not be imposed against them as they were actively involved in removing and dealing with the goods which they know were liable for confiscation. 2.5 Show cause notice was adjudicated vide Order-In-Original No.09/Commissioner/2001 dated 10.12.2001. 2.6 Appeal filed by the appellant against the said order was dismissed by the Tribunal vide Final Order No.397-400/2003 -NB (B) dated 18.06.2003 disposed of the appeal observing as follows: 1. Lamination/ varnishing paper on printed/ unprinted paper amounts to manufacture, as a new and different article having distinct name, character or use having come into existence; 2. laminated/ varnished goods being capable of being brought and sold, were liable to excise duty and goods being 'intermediate' perse does not make the goods non marketable; 3. laminated/ varnished paper/ paperboard was classifiable under Heading 48.11 of CETA and subsequent printing is irrelevant to its classification under Heading 48.11 based on CESTAT's judgment in the case of Srikumkar Agencies; 4. Cost of packing in which goods were sold in wholesale market is includible in assessable value; 5. Art and development charges is includible in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner shall decide the matter expeditiously after granting reasonable opportunity of hearing to both sides. We clarify that we have not expressed any views on the merits of the case." 2.9 Impugned order referred in Para 1 of this order has been passed by the Commissioner in the remand proceedings. 2.10 Aggrieved by the impugned order present appeal has been filed by the appellant. 3. We have heard Shri Atul Gupta, Advocate & Shri Prakhar Shukla, Advocate for the appellants-assessee and Shri S.T. Khairnar Authorized Representative for the Revenue. 4.1 Arguing for the appellant learned counsel submits that vide impugned order: ➢ The Commissioner has dropped all other demands except for the demand made in respect of 07 invoices which are referred in Para 10 of his order. ➢ No evidence has been produced in the order as to why the demand against these invoices needs to be confirmed and how they were different from the other invoices against which demand has been dropped. ➢ No evidence as to the nature of work done or the raw material used supplied by the client manufactured for job work has been produced in the show cause notice or in the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Para 10.17 observed as follows:- "10.17. Now coming to the next issue of duty demand of Rs. 18,18,014/-, demand has been raised based on the invoices detailed in Annexure-III of the show cause notice. From the details contained in the text of the show cause notice in this regard, it has been alleged in the show cause notice that on the paper supplied by the buyers, process of lamination alone was done by the party on job work. The show cause notice does not give further details about the paper received by the party for lamination i.e. paper received was printed or not. About the aspect that paper received for lamination was printed or not, Shri Jatinder Shroff, Director of M/s New Tech in his statement dated 21.05.1997, which has been relied upon in the show cause notice, disclosed that varnishing or lamination was done on the printed sheets. Laminated sheets and varnished sheets were used in the manufacture of books, posters etc. Word 'etc'. used above, includes cartons and boxes, because manufacture of carton and boxes is also an activity undertaken as per the facts involved in the case. Although M/s Neutech have claimed that laminated sheets, prior to lamination we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , duty demand of Rs. 36,081/- is sustainable out of the total duty demanded of Rs. 18,18,014/- on lamination." 5.3 From the above it is observed that the Commissioner has dropped the major portion of the demand after inspecting the invoices and concluding that in respect of all other invoices except the seven listed in table above. The basic reason for confirming the demand in respect of these invoices is that these invoices are in respect of processes of lamination only and do not qualify to be in respect of activities that would take the finished products in the category of articles of the printing industry. Appellants contended that in respect of these invoices also processes similar to the processes stated in the other invoices have been undertaken and the process of lamination alone is not involved but various otter processes are involved which make these goods also as goods of the printing industry. On sample basis we perused one of the invoice, in the table above having maximum value i.e. invoice No.95/0034 dated 29.04.1995 against which demand has been confirmed by the Adjudication Authority, available at Page No.128 of the paper-book. 5.4 On perusal of the said invoice w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re leviable to Central Excise duty, confiscation of these goods is justified." 5.6 From the perusal of the said para we are of the view that the Commissioner has not recorded that the goods that are to be confiscated are excisable goods but he has only expressed his doubt and observed that the unaccounted finished goods are subject to multifarious uses and are leviable to Central Excise duty. In the first part he says these may not be excisable or subject to excise duty as per the facts on record and in the next breath without ascertaining the exact fact and nature of the goods he held them liable for confiscation. It is a settled law that while passing an order for confiscation at least the excisable nature of the goods should have been determined. It is the predetermined mindset of the adjudicating authority whereby he has in respect of these goods without deciding the excisability held the goods to be liable for confiscation. Confiscation cannot be made on the basis of such doubts as expressed by the Commissioner. 5.7 In case of K I Pavunny [1997 (90) ELT 241 (SC)], Hon'ble Supreme Court has observed as follows: "32. It is true that in criminal law, as also in civil suits, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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