COMMISSIONER OF C. EX., CALICUT Vs. VIJAYA PACKERS

JUDGEMENT

(1.) THIS appeal is filed by the Revenue against order -in -original No. 14/2009 -C.E., dated 6 -8 -2009.

(2.) THE relevant facts that arise for consideration are M/s. Vijaya Packers, Kizhakkempattumara, Trichur (hereinafter referred to as assessee) were undertaking manufacture of Glucovita brand Glucose D on job work basis for M/s. Corn Product Company (India) Ltd., Bombay. For this purpose they receive duty paid materials like Dextrose Monohydrate, Tricalcium phosphate and Vitamin D and after carrying out the process of sifting and blending of these materials and quality testing, packed and cleared the resultant product Glucose D containing 100 gms, 200 gms and 500 gms with brand name Glucovita. The final product is being cleared to M/s. Corn Products Company (India) Ltd. It was noticed that appellant was manufacturing and clearing the product without payment of Central Excise duty and without observing any central excise formalities. As it appeared that the product is excisable under Chapter sub -heading 1702.21 of Central Excise Tariff as preparation of other sugars attracting basic excise duty @ 15% adv. and the assessee had suppressed the fact of production and clearance of the product with intent to evade payment of duty, a show cause notice was issued to M/s. Vijaya Packers proposing to demand central excise duty of Rs. 1,12,44,042.50 under Rule 9(2) of Central Excise Rules, 1944 read with proviso to sub -section (1) of Section 11A of Central Excises and Salt Act, 1944 for the period 1 -3 -1986 to 11 -5 -1990 and proposing to impose separate penalties under Rules 9(2), 52A, 173Q, 210 and Rule 220 of Central Excise Rules, 1944 for violation of Rules 9(1), 52A, 53, 173G, 174 and 226 of the rules ibid vide show cause notice C. No. V/17/15/1/90 CX. Adj., dated 7 -11 -90 issued by Collector of Central Excise and Customs, Cochin.

(3.) THE adjudicating authority confirmed the demands raised in the show cause notice for the period 1 -3 -1996 to 11 -5 -1990. Aggrieved by such an order, the assessee preferred an appeal before the Tribunal. The Tribunal remanded the matter back to the lower authorities to reconsider the issue on the points of manufacture, valuation, limitation and imposition of penalties. In the de novo adjudication, vide order -in -original dated 30 -10 -2006, again the demand was confirmed by the adjudicating authority. Aggrieved by such an order, the appellant preferred an appeal before the Tribunal and the Tribunal vide Final Order No. 689/2008, dated 6 -6 -2008 [2008 (230) E.L.T. 68 (Tribunal)] held in favour of the assessee as regards incorrect invocation of limitation. The Tribunal also held that Board Circular No. 7/90, dated 7 -3 -1990 cannot be applied with retrospective effect. And the assessee is liable to discharge duty with effect from 7 -3 -1990 to 11 -5 -1990. Holding so, remitted the matter to the adjudicating authority to requantify the amounts. The adjudicating authority in remand proceedings has requantified the amount and directed the assessee to pay an amount of Rs. 1,33,062/ - which was adjusted by the lower authority from the refund due to the assessee. Revenue is aggrieved by that portion of the order wherein the adjudicating authority has granted Modvat credit of an amount of Rs. 1,56,336/ - to the assessee -respondent in this case.