RAMAKRISHNA DYEING INDUSTRY Vs. CCE

JUDGEMENT

(1.) THE original authority confirmed a demand of duty of over Rs. 11.00 lakhs against the appellants and appropriated an amount of Rs. 6.00 lakhs already paid by them, towards such demand. It also imposed penalty of equal amount on the appellants under Section 11AC of the Central Excise Act. The lower appellate authority set aside the quantification of duty done by the lower authority, and remanded the case to that authority for requantification. As regards penalty, learned Commissioner (Appeals) set it aside to the extent of duty paid by the assessee prior to issue of show -cause notice. As regards the remainder of penalty [a little over Rs. 5.00 lakhs], it was observed that penalty equal to duty under Section 11AC was not mandatory. Quantification of the penalty was left to the original authority. In the present appeal, the assessee is aggrieved by the remand for requantification of duty. It is stated that their plea of limitation was not examined by the lower appellate authority, nor was it categorically required to be examined by the original authority. Yet another grievance is that the assessee was not allowed to cross -examine the parties to whom the job -worked goods were supplied.

(2.) AFTER hearing both sides and considering their submissions, we find that there is no requirement of predeposit in this case for want of quantification of duty and penalty. However, there is a valid prayer for stay of operation of the impugned order. We find that the only two reasons stated as ground for challenging the appellate Commissioner's order are: (1) plea of limitation not considered and (2) request for opportunity to cross -examine certain persons not entertained. Learned Counsel has added one more ground today. He submits that the goods in question attracts deemed credit benefit under Notification No. 6/2002 -CE (NT) and therefore this benefit is liable to be allowed to the assessee. Among the three grounds, the second ground is not pressed. As regards the first objection raised against the impugned order, we find that a part of the demand of duty raised by the original authority was for a period beyond the normal period of limitation of one year and that the plea of limitation raised by the assessee has not been heeded. After considering the submissions of both sides, we are of the view that this plea should also be considered by the original authority in the remanded proceedings. The new ground raised by learned Counsel has been vehemently opposed. Learned SDR submits that such a claim [for deemed credit] was never raised by the assessee earlier. It is pointedly submitted that even the Memorandum of Appeal filed with the Tribunal does not contain this claim. This submission, we find, is factually correct. However, the counsel's submission that the subject goods attract the aforesaid notification is not contested. In the circumstances, we are of the view that the assessee must be at liberty to raise this claim before the original authority and it will be up to that authority to consider it on merits.

(3.) IN the result, the remand order of the lower appellate authority will stand modified to the extent of directing the original authority to consider and decide upon the assessee's plea of limitation and their claim for deemed credit. The appeal stands disposed of.