COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD Vs. UDAY AUXICHEM

JUDGEMENT

(1.) APPEAL No. E/2629 is filed by the assessee against OIA No. 81 to 86/2006 (AHD -I) dated 17 -5 -2006 and appeal No. E/2544 is filed by the Revenue against the same OIA since both the appeals are arising out of the same order in appeal, they are being disposed of by a common order.

(2.) THE facts that arise for our consideration are that the appellant herein had manufactured excisable goods and were dispatching the same without issuing sales bills or accounting the same in any way in their regular accounts. It was noticed that the appellant had manufactured and illicitly cleared the excisable goods valued at Rs. 73,37,395/ -. Various statements were recorded, which indicate that there was clandestine removal of the goods. Statement from the buyers also indicates that the goods they received were cleared by the main party, without payment of duty. The adjudicating authority had confirmed the demand on the main party and also imposed penalties on various parties, including the main party. Adjudicating authority also demanded interest from the main appellant. Aggrieved by such an order, all the persons filed appeal before Commissioner (Appeals). Commissioner (Appeals), while holding against the main assessee, has given them the benefit of working out the duty liability, based upon cum -duty price of the goods cleared and revised the duty liability and set -aside the penalties imposed under Section 11AC, by following the decisions of the Larger Bench in the case of Machino Montell - 2004 (168) E.L.T. 466 (Tri. -LB). He set -aside the penalties on other parties who were in appeal before him, only on the ground that the adjudicating authority has not discussed the role played by them to come to the conclusion and remanded the matter back to the adjudicating authority.

(3.) LEARNED counsel appearing on behalf of the main assessee, arguing for appeal No. E/2629 of 2006 submits that, on instructions argues that, the appeal by the assessee though on various points of merits, is limited only to the question of extending them the benefit of payment of 25% of penalty of confirmed duty amount, after arriving at the amount based on cum -duty price value, which has been taken for the purpose of demand of the duty. It is his submission that Honble Gujarat High Court in the case of M/s. Akash Fashion Prints Pvt. Limited - 2009 (93) R.L.T. 471 (Guj.)=2009 (239) E.L.T. 439 (Guj.) has held that Tribunal can also give this relief to the assessee. It is his submission that they are not arguing on any other points.