Custom, Excise & Service Tax Tribunal
P.M. Chordia Foods & Beverages Pvt. Ltd vs Cce, Aurangabad on 24 June, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. E/22/09 - Mum
(Arising out of Order-in-Appeal No. JAK(243)129/08 dated 17.9.2008 passed by the Commissioner of Central Excise (Appeals), Aurangabad)
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 : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
P.M. Chordia Foods & Beverages Pvt. Ltd.
:
Appellants
Versus
CCE, Aurangabad
Respondents
Appearance None for Appellants Shri N.A. Sayyad, JDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 24.06.10 Date of Decision : 24.06.10 ORDER NO.
Per : Ashok Jindal The appellant has filed this appeal against the confirmation of demand and equivalent amount of penalty by the lower authorities.
2. Despite several notices dated 10.11.09, 9.12.09, 13.4.10, 18.5.10 and today i.e. 24.6.10 none appeared on behalf of the appellant although I find letter dated 05.04.2009 is on record with a request that the impugned order be set aside to the extent of penalty since the unit is closed and nobody is there to look after the litigation. Hence, I have taken the matter for final disposal today.
3. On perusal of the record, I find that this is a case of shortage in the stock of packaged drinking water. During the visit of preventive party to the unit of the appellant on 16.12.2006, the shortage was found to the extent of 396 boxes of 9504 bottles containing 1 litre each, 517 boxes of 4653 bottles containing 2 litres each and 42 jars of 20 litres each. During the course of investigation, Shri. Santosh Agrawal, Plant Manager, has accepted in his statement that they have removed the goods under challans without duty paying invoice.
4. It is undisputed fact that the appellant has admitted that they were clearing the goods without duty paying invoice which amounts to clandestine removal of the goods. More over the statement has not been retracted and they have paid the duty on the same. These facts would not have been detected by the department unless until they visited the premises of the appellant. In that situation, it is clear that the appellant chose not to pay duty with an intention malafidely to evade payment of Central Excise duty which attracts provision of Section 11AC of the Central Excise Act, 1944. As the appellant has admitted duty liability as per the letter dated 05.04.2009 and sought waiver of penalty, the duty demand is confirmed against the appellant and penalty is also leviable on the appellant as per the provision of Section 11AC as discussed above.
5. I have also seen the orders passed by the lower authorities and find that no option has been given to the appellant as per the provisions of Section 11AC to pay 25% of duty as penalty within 30 days of the communication of the order. As the appellant has paid the duty before issuance of show-cause notice, I give an option to the appellant to pay 25% of the penalty confirmed within 30 days, failing which the appellant shall be liable to pay 100% of the penalty confirmed.
6. With these terms, the appeal is disposed of.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) nsk 3