TMI Blog2008 (10) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 crores, without any adjustment, giving reference to a subsequent circular dated 13th Feb., 2003, arguing the case on merit, they cannot derive any advantage to declare the order passed by CEGAT dated 2nd Nov., 2001 as illegal. The position of the company financially being better since the matter was pending before the CEGAT, it having received further amount of ₹ 44 crores by way of refund in view of interim order passed in this appeal, being in advantageous position, it cannot claim for waiver of amount in terms with the proviso to Section 35-F of the Central Excise Act, 1944. - 3232 of 2002 - - - Dated:- 21-10-2008 - S.J. Mukhopadhaya and V. Dhanapalan, JJ. [Judgment per : S.J. Mukhopadhaya, J.]. - The petitioner, ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-original No. 1/01, dated 20th April, 2001, was academic, but the action on the part of the respondent has exposed the petitioner to the risk of demand to the tune of Rs. 85 Crores without any revenue implication to the exchequer. 3. It appears that the respondent issued seventeen show cause notices on the petitioner as shown in order dated 20th April, 2001. The above show cause notices were issued based on the cost audit report given by the special Auditor appointed u/s 14-A of the Central Excise Act, 1944. As per the said report, anode was valued at Rs. 1,32,738/- per metric tonne, manufactured at Tuticorin plant. Pending adjudication of the proceeding, the petitioner deposited Rs. 15.20 Crores of duty. The 3rd respondent, thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on behalf of the company, it was contended that the company has filed an application for refund of drawback claim duty with the department amounting to Rs. 43 Crores. Out of the said amount, drawback claim of Rs. 11 Crores was pending since May, 2001, some of the claim have been filed recently and claim for Rs. 18 Crores was filed on 26th Sept., 2001. Having noticed the said position, Mumbai Bench of CEGAT observed as follows :- "The mere fact that the claim has been filed cannot by itslef indicate that the amounts are due to the applicant, we do not find any inordinate delay by the department in dealing with the claim. The presence of these claims does not justify reduction in the amount to be deposited. We however clarify that if with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of remand to be made by CEGAT to the original authority, which could be done without asking for depositing pre-deposit amount. Reliance was placed on a recent circular of Central Board of Excise and Customs issued from the Ministry of Finance, Department of Revenue, Government of India, vide circular F. No. 692/8/2003-CX, dated 13th Feb., 2003. According to learned Senior Counsel for the petitioner-company, it did not sell copper anode to any person, but it is consumed by the company at Silvasa, Gujarat. So far as seventeen show cause notices are concerned, out of them show cause notices shown at Sl. Nos. 10 to 13 of the impugned order have already been accepted, but the reply in regard to the show cause notices shown at Sl. Nos. 1 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment period 1998-99, 1999-2000, etc., wherever the matter was pending before the authority of the CEGAT, the value of the items have been calculated as per circular dated 13th Feb., 2003 of their own or on remand. We have perused the Circular F. No. 692/8/2003-CX, dated 13th Feb., 2003. Though the circular do not envisage whether it will come into effect from prospective or retrospective date, but in view of the fact that the matter relates to determination of assessable value of goods, captively consumed, if earlier determination as shown vide circular dated 30th Oct., 1996 was not found to be correct and in consultation with the cost accountant branch of the department of Expenditure Board, it was decided to observe the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be evident that the petitioner-company, on 23rd Aug., 2001, of their own, informed that by addition of merging the profit, the duty payable would come down to Rs. 44.56 Crores and that the company had deposited Rs. 15 Crores. The company itself offered to deposit further sum of Rs. 15 Crores as an indicator of goodwill within four weeks, it is only thereafter the company filed the petition for modification of the order, in the said case, CEGAT noticed that the company ended with a profit of Rs. 120 Crores in the preceding financial year ending 30th June, 2001, out of which Rs. 28 crores was distributed as dividend, it further noticed that the applicant had filed application for refund of drawback claim duty with the department amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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