KREBS AND CIE I PVT LTD Vs. COLLECTOR OF CENTRAL EXCISE
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
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(1.) THIS is an appeal filed by the appellant against the order passed by the Additional Collector of Central Excise, Calcutta I Collectorate, Customs House, Calcutta, in order No. 63 (83) 89-Addl. Collr. 20/90 dt. 5-4-1990. In this case the department alleged that the appellant had contravened the provisions of Rule 9(1), 173B, 173F and 173G(1) of the Central Excise Rules 1944. It was stated that the appellants have manufactured and cleared excisable goods without determination and payment of proper Central Excise duty by debiting proper accounts in their PLA to the tune of Rs. 15,460/-. A show cause notice was issued to them and thereafter the adjudication proceedings were held by the authority.
(2.) The learned Additional Collector held that the facts and circumstances of the case did not convince him to conclude that there was any sort of suppression of fact meriting invocation of the proviso to Section 11A and, therefore, he held that the demand made in the subject show cause notice demanding the duty is not sustainable as the same is beyond the period of six months. He stated in the order that the classification list submitted by the appellant were approved one year of submission and the assessment was also not provisional.
But thereafter the learned Additional Collector held that under the self removal procedure the appellant had removed the goods but the appellant cannot get away from their responsibilities to determine and pay the proper Central Excise duty in terms of Rules and, therefore, there is violation of the provisions of Rule 9(1), 173F, 173G(1). Accordingly, he levied a penalty of Rs. 6,000/- on the appellant under Rule 173Q of the Central Excise Rules, 1944.
(3.) THE learned advocate, Sri K.K. Banerjee appearing for the appellant, contended that the conclusion of the learned Additional Collector that the duty demanded is time barred is not challenged by the department and that has become final. He contended that the appellant determined the duty at 15% and removed the goods under Rule 173F of the Central Excise Rules, 1944. He contended that thereafter the RT 12 returns were furnished by the appellants and the same was classified by the proper authorities stating that the duty payable thereon is 20%. But he contended that this was done after one year of the submission of the classification list. He contended that under Rule 173F the appellant has to determine his liability for the duty on the excisable goods intended to be removed and the appellant having determined the duty at 15% and having adjusted the same in the PLA accounts had removed the goods. THErefore, there is no violation of Rule 173F of the Central Excise Rules. He also contended that there is no violation of Rule 173G(1) of the Rules and he had complied with the same. Sri Banerjee also contended that there is no violation of Rule 9(1) of the Central Excise Rules. It was his contention that Rule 173 comes under special Chapter VIIA of the Central Excise Rules, 1944, and the provisions of this Chapter shall prevail over all the other provisions in other chapters by virtue of Rule 173A, of the Central Excise Rules, 1944. He also contended that since the appellant had determined the duty in accordance with Rule 173F of the Central Excise Rules, there cannot be any contravention of Rule 9(1) of the Rules in view of the fact that the goods were removed legally as contemplated under Rule 173F of the Central Excise Rules, 1944.;
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