Customs, Excise and Gold Tribunal - Ahmedabad
Cce vs Ambalal Sarabhai Enterprises on 13 March, 2007
ORDER M.V. Ravindran, Member (J)
1. This appeal is directed against the Order-in-Appeal dated 18.7.2005 vide which learned Commissioner (Appeals) has set aside the penalty imposed on the respondent under Rule 25 of the Central Excise Rules, 2002.
2. Heard both sides and perused the record. The issue involved in this case is that the respondent is penalized under Rule 25 of Central Excise Rules, 2002 for non-filing of "Annual Financial Information Statement" as required under Rule 12(2) of the Central Excise Rules, 2002.
3. On perusal of the record it is seen that the show cause notice was issued to the respondent for invoking provisions of Rule 25 of the Central Excise Rules, 2002 for imposition of penalty for non-filing of Annual Financial information statement for the financial year 2003-04. Rule 12(2) was inserted by Notification No. 34/2004-CE(NT)(dated 1.11.2004. Learned Commissioner (Appeals) has come to the conclusion as under:
I find that the appellant has not filed the ER4 pertaining to the financial year 2003-04 and the adjudicating authority has penalized them under Rule 25 and Rule 27 of this omission. The appellant has however, pleaded that they are not required to file ER 4 for the financial year 2003-04 in terms of the above mentioned Rule. I agree with the appellant that the above mentioned notification/Rule, does not provide for filing of ER 4 for the year 2003-04. This notification merely provides for filing of ER 4 only by 30th November of the succeeding financial year. That leaves eight months time at the disposal of the assessee to prepare and file the requisite ER 4. In case the appellant are asked to file the ER 4 for the financial year 2004-04 also, they are left with only one month (upto 30th November), since this requirement has been introduce with effect from 01.11.2004. In the facts and circumstances of the case, the appellant is not required to file the ER4 for the financial year 2003-04.
To my mind the learned Commissioner (Appeals) finding as above are quite right in the facts and circumstances of the case and does not require any interference.
4. Further, I find that the show cause notice has been issued for penalizing the respondent under Rule 25 of the Central Excise Rules, 2002 which reads as under:
RULE 25. Confiscation and penalty. - (1) Subject to the provisions of Section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse or a registered dealer, -
(a) removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or
(b) does not account for any excisable goods produced or manufactured or stored by him; or
(c) engages in the manufacture, production or storage of any excisable goods without having applied for the registration certificate required under Section 6 of the Act; or
(d) contravenes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the producer or manufacturer or registered person of the warehouse or a registered dealer, as the case may be, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention of the nature referred to in Clause (a) or Clause (b) or Clause (c) or Clause (d) has been committed, or [rupees then thousand], whichever is greater.
(2) An order under Sub-rule (1) shall be issued by the Central Excise Officer, following the principles of natural justice.
From bare reading of the said rule, imposition of penalty under Rule 25 in this case does not arise for non-filing of the Annual Financial information statement.
5. Accordingly, in view of the findings of the learned Commissioner (Appeals) and the provisions of the law, I find no substance in the appeal filed by the Revenue. Impugned Order does not require any interference and is upheld. Appeal filed by the Revenue is dismissed.
(Dictated & pronounced in the Open Court.)