Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S. Shree Warana Agricultural Goods ... on 13 July, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO. E/2114/06 (Arising out of Order-in-Appeal No. PII/078/06 dated 24/03/2006 passed by the Commissioner (Appeals) Central Excise Pune-II For approval and signature: Honble Shri Ashok Jindal, Member (Judicial) ============================================================
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
============================================================= Commissioner of Central Excise, Pune-II :
Appellants VS M/s. Shree Warana Agricultural Goods Processing Co-Operative Society Ltd.
Respondents Appearance Dr. T. Tiju, SDR Authorized Representative None For Respondent CORAM: Shri Ashok Jindal, Member (Judicial) Date of decision : 13/07/2010 ORDER NO. Per : Ashok Jindal, Member (Judicial)
Revenue have filed this appeal against the order wherein mandatory penalty under Section 11AC has been dropped against the respondent.
2. The facts of the case are that the respondent, a 100% EOU had cleared scrapped Aseptic Bags procured under procurement Certificates without payment of duty. These bags were sold in DTA without payment of excise duty the same was admitted by the respondent during the course of investigation. They have paid the duty, interest before issuance of the show cause notice. In adjudication order, the penalty of Rs. 19,600/- was confirmed against the respondent under Section 11AC of the Central Excise Act, 1944. On appeal the Commissioner (Appeals) dropped the penalty. Aggrieved from the same, Revenue is before me.
3. None appeared on behalf of the respondent despite notice.
4. Heard the learned SDR.
5. The contention of the learned SDR is that when the respondent admitted that they have cleared the goods in DTA without payment of duty which they were not entitled and the respondent have admitted their guilt, the mandatory penalty under Section 11AC is leviable as they have suppressed the fact of clearance of the goods without payment of duty from the Department.
6. I have gone through the records and find that there is an admission by the Chief Executive Officer of the respondent that they have effected the clearance of goods to outside parties without payment of Central Excise duty, which was originally procured under procurement certificates and it is also admitted by them that they have not informed the clearance of said goods to the Department before clearance, as they are the 100% EOU. Accordingly, the respondents are liable for penal action. Hence, mandatory penalty under Section 11AC is confirmed equal to the duty.
7. As, I seen from the record that no option is given by the adjudicating authority to the respondent to pay 25% of duty as penalty within 30 days of the adjudication as held by the Honble Delhi High Court in the case of K.P. Pouches (P) Ltd. Vs. Union of India reported in 2008 (228) ELT 31 (Del.), I give the option to the respondent to pay 25% of the duty as penalty within 30 days of the communication of this order. Failing which the respondent shall be liable to pay 100% of the penalty confirmed.
8. With these observation the appeal is disposed of.
(Pronounced in court) (Ashok Jindal) Member (Judicial) Sm 2