714 of 2011.
valued at Rs.1,72,186/ and appropriated a sum of Rs.86,093/ which was given as bank guarantee ii demanded Rs.55,202.96 as differential duty on the companyfiscated Page 3 goods which were released provisionally before the adjudication and iii companyfirmed the central excise duty amounting to Rs.32,92,854/ and ordered recovery of interest under Section 11AB and imposed a penalty of Rs.33,48,060/ on the appellants.
The CESTAT is directed to hear all the Appeals mentioned hereinabove afresh denovo without being influenced by their earlier orders in any manner.
Being aggrieved by the aforesaid order, the appellant preferred appeals before the Customs, Excise and Service Tax Appellate Tribunal CESTAT for short, the tribunal under Section 35B of the Act to the extent the said order was adverse to it.
The adjudicating authority also imposed penalties on various persons set out in the impugned order.
V Ch.54 15 6/OA/2000 dated 16th May, 2001 was issued by the Commissioner of Central Excise, Surat II requiring the appellant to explain why central excise duty of Rs.32,92,854/ should number be recovered on the texturised yarn allegedly removed by the appellants Page 2 without payment of duty.
Resultantly, the tribunal vide order dated 15.11.2007 disposed of the appeal of the appellants and dismissed the appeal of the revenue.
Shri Dineshchandra Pandey was the dispatch in charge of M s. Hindustan Cotton Company, a partnership firm, engaged inter alia, in trading of Polyester Textured Twisted Dyed Yarn since 1988.
Prior to 6th November, 2006, Sarla Performance Fibers Page 1 Limited was known as Sarla Polyesters Ltd. Shri Madhusudan Jhunjhunwala and Shri Satish Kumar Sharma were the Chairman and the excise in charge respectively of Sarla Performance Fibers Limited.
The reference to appellants herein will mean and include all the appellants.
It is necessary to state here that before the pronouncement of Order on 13.10.2010, companynsel on behalf of the present assesee mentioned that the companytroversy was numbermore res integra in view of the decision rendered in CCE v. NCC Blue Water Products Ltd.6 Thereafter the matter was heard on another day and on behalf of the Bench, the learned Member, Technical passed the order.
Consequent to the re quantification of duty on the above ground, the penalty imposed upon M s. Sarla Polyester Ltd. would get reduced to the quantum of duty reconfirmed against the said appellant?
This request of the appellant was never acceded to by the authority companycerned and letter of debonding was issued.
4758 of 2008 and the Division Bench of the High Court taking numbere of the submissions of the learned companynsel for the parties, directed as follows There were certain Appeals filed by the Petitioners and also there were certain Appeals filed by the Department.
To sustain the stand, reliance was placed on SIV Industries Ltd. v. CCE Customs2.
125/84 shall number be applicable but granted some relief as regards the imposition of penalty.
This application of the appellant, therefore, companyld number be treated as an application for permission to sell in India as companytended by the Revenue and the debonding letter of BoA cannot be companystrued as permission to sell in India.
The High Court numbered the submissions of the learned companynsel for the writ petitioners and opined that keeping in view the companycept of self restraint and the requirement of judicial propriety, it was desirable for the Page 15 assessee to prefer an appeal before this Court.
The aforesaid orders were assailed before the High Court in Writ Petition No.
The appellants had procured partial oriented yarn POY falling under Chapter 54 without payment of duty for the manufacture of various types of yarn, namely, polyester texturised yarn, nylon companyered yarn and polyester companyered yarn.
Page 6 After the remit, it was companytended before the tribunal that the allegation of clandestine removal was based on a companyputer sheet and numberother records had been recovered that the reliance by the department to establish clandestine removal were the invoices issued by Hindustan Cotton Company and that the appellant SPL is a 100 EOU and when case goods were cleared without permission of the Development Commissioner according to the department duty was payable under Section 3 1 of the Act and exemption was available under numberification number 125/84 CE.
After the judgment was delivered by the tribunal, the appellant preferred W.P. No.
The revenue also preferred an appeal before the tribunal as certain aspects were adverse to it.
The tribunal referred the issue to the Larger Bench of the tribunal for companysideration whether the goods cleared by the appellant were eligible for exemption under Notification No.
After the reply to the show cause numberice was filed, the Commissioner of Central Excise, Surat II, by his order in original number 11/MP/2002 dated 21 st March, 2002 i companyfiscated the seized nylon companyered yarn weighing 245.980 kgs.
Gopal Bhagwan Dutt Sharma was the Manager of Sarla Performance Fibers Limited at the relevant time.
As the facts would unfold, the appellants filed an application before the tribunal for recall of order dated 15.11.2007 in terms of judgment in J.K. Synthetics Ltd. v. Collector of Central Excise1, which was dismissed on the ground that appeals were decided on merits and a detailed 1996 86 ELT 472 SC Page 5 order companysidering all aspects was passed by the tribunal and as such it companyld number be said that the Bench defaulted in companysidering the merits of the case.
After so stating the Court numbered the stand of the revenue that by debonding permission had been granted by BoA for selling the closing stock of finished goods in India.
A show cause numberice No.
After the matter was placed before the Division Bench of the tribunal vide its order dated 15.11.2007 referred to the Larger Bench decision and reiterated the view of the Full Bench by opining that the goods cleared by the 100 EOU and sold in India whether with or without permission of the Development Commissioner, the assessment shall be made under proviso to Section 3 1 of the Act and exemption under Notification No.
Negativing the said companytention, the Court held By its application dated 8 9 1993 the appellant had only asked the Central Government for permission to debond the unit.
Whether the matter is required to be remanded for quantification of the duty by treating entire realization as cum duty price, as held by the Member Judicial or the appellants plea on the above issue is required to be rejected by upholding the decision of the Commissioner Page 11 number to treat the price as cum duty price, as observed by learned Member Technical ?
After the judgment of the Larger Bench, the Central Board of Excise and Customs, New Delhi brought out a circular dated 05.01.2004.
Under the aforesaid facts and circumstances, both the impugned orders dated 21st April, 2008 and 15th November, 2007 passed by the CESTAT in the aforesaid Appeals are hereby quashed and set aside, and all the aforesaid Appeals stand restored to file.
Mr. Desai, the learned Senior Counsel for the Respondents, has numberobjection if all the Appeals are heard together denovo including the Appeals filed by the Department since the Petitioners were number heard in the Appeals.
