Custom, Excise & Service Tax Tribunal
M/S. Fluolite (P) Ltd vs Cce, Bangalore on 1 December, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing: 01/12/2010
Date of decision:01/12/2010
Appeal No.E/718/07
(Arising out of Order-in-Appeal No.23/2007 dt. 20/7/2007
passed by CCE(Appeals), Bangalore )
For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial)
Honble Mr. B.S.V. Murthy, Member(Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Fluolite (P) Ltd.
..Appellant(s)
Vs.
CCE, Bangalore
..Respondent(s)
Appearance Ms. Vijaya Prakash, Advocate for the appellant.
Mr. K.S. Chandrasekhar, JDR for the Revenue.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) Honble Mr. B.S.V. Murthy, Member(Technical) FINAL ORDER No._______________________2010 Per B.S.V. Murthy The appellants are manufacturers of fluorescent light starters, lighting wires and light fittings falling under chapter 8536-90 and 9450-90 of the schedule to the Central Excise Tariff Act, 1985. An offence case was booked against the appellants alleging that they had cleared excisable goods clandestinely during the period 2003-04 without payment of Central Excise duty by raising 2nd set of invoices. During the investigation the appellant paid the duty and interest. Show cause notice was issued for appropriation of duty and interest paid and also for imposition of penalty under Section 11AC of Central Excise Act, 1944 and also under Rule 25 of Central Excise Rules, 2002. Thereafter, the lower authorities have appropriated the duty and interest already paid and also imposed penalties under Section 11AC of Central Excise Act, 1944 and under Rule 25 of Central Excise Rules, 2002.
2. Even though, it had been contended in the appeal memorandum based on several decisions of Tribunal as well as the Honble High Court, the ld. Advocate fairly admitted that the decision of the Honble Supreme court in the case of UOI Vs. Dharmendra Textile Processors [2008(231) ELT 3 (SC)] and UOI Vs. Rajasthan Spinning & Weaving Mills [2009(238) ELT 3 (SC)], now it is settled that penalty under Section 11AC is mandatory. She also fairly admitted that as observed by the lower authorities, clearances were made under second set of invoices under which duty was collected but never paid to the Department. It was also found during the course of hearing that the show-cause notice even though cited Section 11D of Central Excise Act, 1994 which provides for payment of whatever amount collected as Central Excise duty to the Government, the show-cause notice had proposed demand of duty by invoking proviso to Section 11A of Central Excise Act by invoking suppression of facts and mis-declaration of value. Therefore, penalty under Section 11AC has been rightly proposed and in the light of facts of the case wherein on duplicate set of invoices, duty was collected but not paid to the Department, invocation of extended period as well as penalty under Section 11AC are sustainable. The ld. Advocate prayed that the penalty under Section 11AC, even though mandatory, in view of the fact that both the lower authorities did not make specific mention of the provisions of Section 11AC which provided that when duty, interest and 25% of duty towards penalty are paid within 30 days of the order, the penalty imposed under Section 11AC would be treated to have been fully paid. This Tribunal can extend such an option. We find that this is so in view of the decisions of the Honble High Court of Gujarat and Tribunal in the following cases:-
a. CCE&C, Surat-I Vs. Palav Synthetics [2010(258) ELT 59 (Guj.)] b. CCE Vs. Hari Om Silk Mills [2010(257) ELT 494(Guj.)] c. CCE&C, Surat-I Vs. Harish Silk Mills [2010(255) ELT 393 (Guj.)] d. CCE, Vadodara Vs. Swati Chemical Industries ltd. [2009(248) ELT 421 (Tri. Ahmd.)]
3. In view of the above decisions, we consider it appropriate that in this case also, an option to be given to the appellant to pay 25% of the duty towards penalty within 30 days of the receipt of this order. It is made clear that if the penalty to the extent of 25% is not deposited within 30 days from the date of receipt of this order, the appellant shall be liable to pay penalty equal to duty amount as per the provisions of Section 11AC of Central Excise Act, 1944. In the result, appeal is partly allowed as observed above.
(Operative portion of this order pronounced on conclusion of the hearing) (B.S.V. MURTHY) MEMBER (TECHNICAL) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 4