Custom, Excise & Service Tax Tribunal
Texmaco Rail & Engineering Ltd vs Kolkata-Iii on 11 December, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.1
Excise Appeal No.75709 of 2015
(Arising out of Order-in-Original No.01/Commr./CE/Kol.III/2015-16 dated 23.04.2015
passed by Commissioner of Central Excise, Kolkata III)
M/s Texmaco Rail & Engineering Limited
(Agarpara Works, PO-Belgharia, Kolkata-700056)
Appellant
VERSUS
Commissioner of Central Excise, Kolkatta III
(180,Shantipally, Rajdanga Main Road, Kolkata 700107)
Respondent
APPERANCE :
Shri Joydeb Bhattacharya, Chartered Accountant for the Appellant Shri P.K.Ghosh, Authorized Representative for the Respondent CORAM:
HON'BLE MR.ASHOK JINDAL, MEMBER (JUDICIAL) HON'BLE MR.RAJEEV TANDON, MEMBER (TECHNICAL) FINAL ORDER NO.77849/2024 DATE OF HEARING : 11 DECEMBER 2024 DATE OF DECISION : 11 DECEMBER 2024 Per Ashok Jindal :
The appellant is in appeal against the impugned order seeking immunity from imposition of redemption fine of Rs.100 Crores.
2. The facts of the case are that the appellant is engaged in the business of manufacture and sell of Railway Wagons, both to Indian Railways as well as to Other Private Parties. During the relevant period, Drawing and Design Charges and Inspection Charges paid to RDSO/RITES by the Appellant on behalf of the Private Parties, other than Indian Railways and later on reimbursed from them shall be Included in the Transaction Value and excise duty is leviable on the same under section 11A(10) of the Central Excise Act, 1944 read with 2 Excise Appeal Nos.75709 of 2015 Rule 6 of the Central Excise (Determination of Price of Excisable Goods) Rules, 2000. However, as the Appellant used to levy and discharge Excise Duty only on the Transaction Value and not on the Drawing & Design and Inspection Charges reimbursed from clients other than Indian Railways, the same is liable to be recovered along with applicable Interest under section 11AA of the Central Excise Act, 1944 and Penalty under Section 11AC of the Central Excise Act, 1944 read with Rule 25 and 26 of Central Excise Rules 2002. Further, in the impugned Order-in- Original, it is held that as the Appellant had cleared 3065 numbers of railway wagons having approximate value of Rs.500 Crores without payment of appropriate Central Excise Duty by resorting to undervaluation of excisable goods, therefore, it is held that the goods are liable for confiscation. In lieu of confiscation, the department has levied redemption fine of Rs.100 Crores as per Section 34 of the Central Excise Act, 1944.
2.1 Thereafter, the appellant opted for SVLDRS Scheme, which was denied to the appellant on the ground that the said Scheme does not cover the redemption fine imposed on the appellant. Hence, the appellant has come before us praying for immunity from imposition of redemption fine on the ground that the goods are not available. In that circumstances, the appellant submits that the redemption fine cannot be imposed on the appellant as the goods are not available, no redemption fine can be imposed as held by the Larger Bench of this Tribunal in the case of Shiv Kripa Ispat Private Limited Vs. Commissioner of Central Excise & Customs, Nasik reported in 2009 (235) ELT 623 (Tri-LB).
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Excise Appeal Nos.75709 of 2015
3. Heard both the parties and considered the submissions.
4. We find that in this case, the appellant is contesting only the redemption fine imposed on them. Admittedly, in this case, the goods are not available. In that circumstances, the redemption fine cannot be imposed on the appellant as held by the Larger Bench of this Tribunal in the case of Shiv Kripa Ispat Private Limited (supra). Therefore, the redemption fine imposed on the appellant is set aside.
5. In these terms, the appeal is allowed qua imposition of redemption fine on the appellant.
(Operative part of the order was pronounced in the open court) (Ashok Jindal) Member (Judicial) (Rajeev Tandon) mm Member (Technical)