Full Judgment
2. Ld. Advocate Shri V.M. Doiphode, appearing for the appellants does not dispute the findings of clandestine removal as arrived at by the adjudicating authority. He however, submits that while arriving at the quantum of such clearances, the revenue has taken total clearance value as reflected in unofficial balance sheet and subtracted clearance value as reflected in their RT-12 returns. His submission is that value as shown in RT-12 returns is the assessable value i.e., without inclusion of excise duty, sales tax, etc., whereas the value of clearance in balance sheet is inclusive of taxes and the other admissible deductions. As such, the authorities have committed an error inasmuch as the clearance value as shown in the official balance sheet should have been deducted from the clearance value as shown in unofficial balance sheet so as to arrive at the clandestine value of clearances.
3. In a nutshell, the appellant's contention is that either the gross value of one balance sheet should be deducted from the gross value of other balance sheet or the net value in terms of the one balance sheet should be deducted from the net value in terms of the other balance sheet. Though the Ld. Advocate submits that though the above point was taken before the adjudicating authority, he has not accepted the same.
4. However, we find force in the above contention of the appellants.
Either the gross value as reflected in official balance sheet has to be debited from gross value reflected in unofficial balance sheet or the net value of clearance in terms of one balance sheet has to be deducted from the net value in terms of the other balance sheet so as to arrive at the correct figure of clandestine clearance for the said purpose, we remand the matter to the Commissioner to re-adjudicate on the said issue and re-quantify the demand of duty accordingly.
5. At this stage, Ld. Advocate submits that a small portion of the demand pertaining to August 94 has been confirmed on the basis of chits recovered from their premises, but pertaining to goods not manufactured by them. He also disputed the rate of duty applied by the revenue for quantification of demand inasmuch as in terms of the provisions of Rule 9A, when the date of clearance is not known, rate applicable on the date of issuance of the show cause notice is to be applied. He also disputed the confirmation of interest on the ground that the provisions of Section 11AB were not inexistence at the time of issuance of the show cause notice.
6. Inasmuch as we have already remanded the matter to the Commissioner, the appellants has liberty to raise the above issues before the adjudicating authority, who would decide the same afresh in the de novo proceedings. Penalty amounts imposed upon the various other appellants are also required to be decided afresh.
7. Revenue's appeal against the same impugned order is in respect of that part of the order vide which he has given the benefit of cum duty value to the appellants. We find that the above issue is no more res integra and stands decided by the Larger Bench's decision of the Tribunal in the case of Srichakra Tyres Ltd. v. CCE, Madras , as also by the Hon'ble Supreme Court in the case of CC v. Maruti Udyog Ltd. . Inasmuch as the issue is decided, we find no merits in the above appeal of the revenue, the same is accordingly rejected.
8. As a result, the appeals filed by the assessee and the other appellants stand remanded and the appeal filed by the revenue is rejected.