Custom, Excise & Service Tax Tribunal
Prijai Heat Exchangers Pvt. Ltd vs Commissioner Of Central Excise, ... on 25 June, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. E/S/95576/13-Mum APPEAL No. E/87183/13-Mum (Arising out of Order-in-Appeal No. BC/590/M-III/2012-13 dated 21.2.2013 passed by Commissioner of Central Excise (Appeals), Mumbai-III, Belapur) For approval and signature: Honble Mr. S.S. Kang, Vice President ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Prijai Heat Exchangers Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Mumbai-III Respondent Appearance: Shri V.S. Rane, Advocate, for appellant Shri B.S. Meena, Additional Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President Date of Hearing: 25.6.2013 Date of Decision: 25.6.2013 ORDER NO
Heard both sides. The applicants filed this application for waiver of pre-deposit of penalty. The duty along with interest has already been paid.
2. With the consent of the parties, the appeal is being taken up for hearing.
3. The appellants challenged the imposition of penalty only. The brief facts of the case are that the appellants are engaged in the manufacture of excisable goods and availed credit in respect of capital goods. The same were cleared after use on 5.9.2009 and 16.2.2010 on payment of duty as per Notification No.39/2007-CE(NT) dated 13.11.2007 by calculating the duty on quarter and part thereof from the date of receipt of the capital goods in the factory. The officers of the Revenue pointed out that the appellants had short paid the duty on the capital goods. On pointing out the same, the appellants immediately paid the duty along with interest on 9.3.2010. Thereafter the appellants received show cause notice dated 3.2.2012 for appropriation of the duty amount already paid and for imposition of penalty under Section 11AC of the Central Excise Act. The adjudicating authority confirmed the demand along with interest and imposed penalty under Section 11AC of the Central Excise Act. The appellants filed appeal and the same is dismissed by the Commissioner (Appeals).
4. The contention of the appellants is that the issue is in respect of interpretation of the provisions of Notification 39/2007-CE(NT). The appellants calculated and paid the duty by taking into consideration the quarter in which the capital goods were received and cleared from the factory whereas the Revenue is calculating duty on the basis of the days from the day the capital goods were received in the factory. In these circumstances, there is no intention on the part of the appellants to evade payment of duty.
5. The Revenue relied upon the findings of the lower authority and submitted that as the appellants had short paid the duty at the time of clearance of the capital goods, therefore differential duty has been paid subsequently in view of the objection raised by the Revenue, therefore it is a clear case where the appellants evaded payment of duty hence the penalty is rightly imposed.
6. I find that the provisions of Notification No. 39/2007-CE(NT) provide that if the capital goods on which credit has been taken are removed after being used, the manufacturer shall pay an amount equal to cenvat credit taken on the capital goods reduced by 2.5% on each quarter of the year or part thereof from the date of taking of the cenvat credit. The appellants while clearing the capital goods calculated duty on quarterly basis whereas the Revenue wants to calculate on actual number of days. In these circumstances, I find merit in the contention of the appellants that it is not a case of intention to evade payment of duty, therefore the penalty imposed under Section 11AC of the Central Excise Act is set aside and the appeal is allowed.
(Dictated in Court) (S.S. Kang) Vice President tvu 1 4