ORDER
C.N.B. Nair, Member (T)
1. All these appeals are directed against the same Order-in-Appeal passed by the Commissioner, Central Excise (Appeals), Chandigarh [Order-in-Appeal Nos. 441-443/Ce/CHD-I/01, dated 28-9-2001]. Accordingly, they were taken up together for hearing and are disposed of under this common order.
2. In the impugned order the Commissioner (Appeals) noted that the duty demand after adjusting Modvat credit and duty amount already paid would be only Rs. 71,368/- and accordingly he reduced the penalty imposed by the original authority from Rs. 3,27,209/- to Rs. 71,368/-.
3. The appeal of the assessee [Appeal No. E/286/2001-A] contends that the duty demand worked out in the impugned order by the Commissioner (Appeals) is not correct. It is submitted that even though the clearance of the goods in question was spread over the period from December, 1997 to March, 1998, the same assessable value of Rs. 17,500/- has been adopted for working out the duty payable. The appellant’s contention is that the assessable value is required to be worked out based on the sale prices during the relevant period, that too treating the sale price as cum-duty values. It is submitted before us that sales realizations were required to be treated as cum-duty values in view of the decision of this Tribunal in the case of Srichakra Tyres v. C.C.E. – 1999 (108) E.L.T. 361 and of the Supreme Court in C.C.E. v. Maruri Udyog Ltd. [2002 (141) E.L.T. 3 (S.C)].
4. The appeals of the Revenue contend that no adjustment towards Modvat credit was to be allowed since the Assistant Commissioner had reversed his order of condonation of delay in filing the Modvat declaration. It also submits that no reduction of penalty could be allowed as penalty is to be equivalent to duty short-levied in terms of Section 11AC of the Central Excise Act.
5. We have perused the records and considered the submissions made by both sides. It is now well settled that sales realisation in respect of non-duty paid goods has to be treated as cum-duty price and that total sales realisation cannot be taken as assessable value for the purpose of computing central excise duty. Therefore, the assessees contention on this count merits acceptance. Penalty amount is also required to be re-considered after determining the duty amount involved.
6. It is equally well settled that penalty prescribed under Section 11AC is the maximum and that penalty equal to duty short-levied is not required to be imposed as a rule, invariably in all cases. Therefore, Revenue’s contention in regard to quantum of penalty has to fail. Their contention regarding Modvat credit also cannot be accepted. Assistant Commissioner had allowed condonation of delay to the appellants in regard to the filing of Modvat declaration. Therefore/ we find no error in the action of the lower authorities in permitting adjustment of Modvat credit while computing the duty due.
7. In view of what has been stated above, Revenue’s appeals are rejected and the assessee’s appeal is disposed of by way of remand. The juris-dictional Deputy Commissioner is directed to work out the duty demand afresh treating the sales realisations as cum-duty prices. The assessee shall be allowed adjustment towards Modvat credit and the duty already deposited while determining the amount of duty outstanding. Penalty amount shall also be re-determined after taking into account the net amount of duty required to be paid by the assessee.