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TMI Blog2003 (8) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... al output. The price of such goods sold to private parties was decided by the Ministry. 2. Consequent to the eligibility of Modvat facility granted, the appellants opted for the same w.e.f. 1-7-95 for the supplies made to private parties. The goods supplied to the Indian Railways system were exempted vide Notification No. 62/95-CE, dated 16-3-95 as amended. Whenever goods were supplied to the Indian Railways, duty on inputs utilized for manufacture of such wheel, axle and wheel sets was worked out and based on norms prepared, the amounts were reversed. However, when supplies were effected to private parties, credit to the extent based on the said norms was availed and the balance amount paid from PLA of the duties which were paid on suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, 1944. (ii) The differential duty of Rs. 9,22,83,577/- on account of under-valuation should not be recovered under proviso to Sec. 11A of the Central Excise Act, 1944. (iii) Penalty should not be imposed equivalent to the amount should not be imposed under the provisions of Sec. 11AC. (iv) Penalty should not be imposed under the provisions of Rules 173Q and 226 of Central Excise Rules, 1944. (v) Interest should not be charged and recovered under Sec. 11AB of the Central Excise Act, 1944." 4. The Commissioner vide the Order impugned, after considering the replies and findings that there was suppression of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Covered Duty Involved (in Rs.) 01 OC No. 1044/99, dated 25-10-99 Issued by the Supdt. of Central Excise, Yelahanka I Range April '99 to Sept. '99 86,75,182/- 02 Of No. 207/2000, dated 6-3-2000 Issued by the Supdt. of Central Excise, Yelahanka I Range Oct '99 to Feb.' 2000 1,71,216/- 03 C. No. IV/ 16/42/2000 C & V, dated 27-3-01 Issued by the Assistant Commissioner Central Excise 'C' Dvn. March, 2000 7,74,600/- 04 C.No. IV/16/42/2000 C & V, dated 27-3-2001 Issued by the Assistant Commissioner of Central Excise, Bangalore read with Corrigendum of Even No. dated 5-2-02 April, 2000 to Dec.' 2000 1,05,31,475/- 05 C. No. V/86/15/9/99 Adjn., dated 5-2-2002 Issued by Assistant Commissioner of Central Excise 'C' Dvn., Bangalore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the appellant and the Zonal Railways, both constitute and are the same legal entity i.e. Indian Railways. Hence, following the case law, cited, based on Supreme Court decisions, Modvat credit as availed, was not required to be reversed under Rule 57CC since no sale price of the goods removed for use in the Indian Railways system i.e for captive consumption of Indian Railways, is not available in this case. We are reinforced in coming to such a finding, that there was no sale price available, since the Commissioner in the impugned order itself is determining the valuation, of the removals effected to Indian Railways, under Rule 6(b)(i) of the Central Excise (Valuation) Rules, for the purposes of determining liability under erstwhile Rule 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ec. 11A restricts itself to recovery of duty. Tribunal in the two decisions, which are being relied upon, has held that the 'amounts' mentioned in Rule 57CC is not in the nature of a duty. Therefore, the recoveries as ordered cannot be upheld. Relying on Pushpaman Forgings [2002 (149) E.L.T. 490 (T)= 2002 (48) RLT 107] wherein the Tribunal held that in the absence of machinery provision in the Act or the Rules for the recovery of 'an amount' under 57CC, the present order of recovery of 'an amount' under 57CC cannot be upheld. We also rely upon the case of Gas Authority of India Ltd. [2001 (135) E.L.T. 795] to come to our conclusion that recoveries under Rule 57CC of Central Excise Rules, 1944 is not in the nature of duty and therefore Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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