TMI Blog2000 (9) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... t permitted by the department. Thus this diversion of 61454 K.L of NGL for generation of electric power which in turn was used for driving various motors, equipments in the plant as well as for factory services and lighting in site office, administrative building and were put to notice why the concession should not be withdrawn, the B-8 bond forfeited and differential duty of Rs. 2,94,46,288/- be recovered from them involving the provisions of extended period and penalty be imposed under Rule 173Q of Central Excise Rules, 1944. 2. The Commissioner found :- "It is seen from the statement showing details of NGL received and consumed submitted by the party along with their defence reply dated 27-10-1998 that Captive Power Plant of NFL comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the benefit to the extent of 63.02% is to be allowed. The Assistant Commissioner, Gwalior was asked to quantify the amount of duty recoverable from them, which has been done by him, a report to this effect was submitted. The actual amount of duty works out to Rs. 1,10,86,754.15. They have also claimed that assessable value taken for consideration of duty liability is not correct and price of Indian Oil Corporation should be considered for arriving at duty liability. I find that the noticee have obtained NGL from M/s. Gas Authority of India Ltd. under Chapter X procedure. Consigner, M/s. Gas Authority has shown value per M.T. in concerned invoices. Naturally, the value charged by the consigner in normal course has to be taken as basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antity admitted by the appellants to be used for generation of electricity and dropped the demand for duty on NGL used for generation of steam which in turn was used for production of fertilizers. A penalty of Rs. 2 crores was imposed on the noticee under Rule 173Q read with Section 11AC and ordered the recovery of interest under Section 11AB. 3. Heard the appellants and the DR and considered the submissions and the material on record we find :- (a) The clearance in this case to the Public Sector Undertaking by Committee of Secretaries to proceed in this matter has been given only for penalty imposed and not to the duty amount involved. Accordingly, the appeal which was dismissed on 27-7-1998 was recalled and restored vide order dated 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11AC called for in the facts of this case. Imposition of penalty without coming to a finding as to why it is considered necessary to invoke the penalty clause is bad in law and is required to be set aside on that ground. (c) We also find that the plea of time bar raised and determined under proviso to Section 11A is not called for as duty on goods not accounted under rule 196 is not covered by the relevant date when demands of duty are not being determined under rule 196. We rely on Indian Farmers Fertilizers Co-op. Ltd. v. Collector - 1989 (41) E.L.T. 474-487. Therefore, the finding of applicability of proviso clause of Section 11A (1) is redundant. No time bar limitations of proviso clause arise in this case. (d) We find that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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