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CX - Re-quantification of demand - When first & last page of SCN indicates that notice was issued on 09/07/1998 it is very strange as to how Revenue has come to conclusion that SCN has been issued on 19/06/1998 - ground to file appeal is frivolous: CESTAT

By TIOL News Service

MUMBAI, JULY 23, 2014: TAKE a look at the time and energies the department has in pursuing an appeal.

This is the 2 nd round of litigation.

In the earlier round, the Tribunal had remanded the matter back to the adjudicating authority with a direction to re-quantify the duty for a period of six months after allowing the benefit of MODVAT credit, for which purpose the appellants would produce the relevant documentary evidence.

Consequent to the remand order, the adjudicating authority viz. Commissioner, after noticing that the SCN was issued on 09.07.1998, re-quantified the demand for the period 09.01.1998 to 09.07.1998 by extending the benefit of MODVAT credit.

As mentioned, Revenue is in appeal before the Tribunal and submits that the Commissioner has erred in quantifying the demand inasmuch as since the SCN was issued on 19.06.1998, the demand should have commenced from 19.12.1997.

None appeared for the respondent probably because he may have felt that it was a waste of time and money.

The Bench observed -

"6. In fact, the show-cause notice has been issued on 09.07.1998. This fact can be verified from the first page and the last page of the show-cause notice itself. Therefore, it is very strange and also not understandable how the Revenue has come to the conclusion that the show-cause has been issued on 19.06.1998. Therefore, the ground taken by the Revenue to file the appeal is totally frivolous and on this ground itself the demand is not sustainable. I further find that in the remand proceedings, there was a clear-cut direction to the adjudicating authority to re-quantify the duty for a period of six months prior to the date of show-cause notice after allowing the benefit of MODVAT credit. The Tribunal's order has been accepted by the Revenue as no appeal has been filed by the Revenue against the said order. Therefore, the question of demanding differential duty for which the respondent has not shown any proof, is not sustainable because the issue has become final in the earlier round of litigation, hence the appeal filed by the Revenue has no merit. In these circumstances, I do not find any infirmity with the impugned order and the same is upheld…."

The Revenue appeal was dismissed.

(See 2014-TIOL-1309-CESTAT-MUM)


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