Custom, Excise & Service Tax Tribunal
M/S. Asian (Hygenic) Food Inds. (P) Ltd vs Cce, Ghaziabad on 12 February, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO. 2, R.K. PURAM, NEW DELHI COURT II EXCISE APPEAL NO. 2975 OF 2006-SM [Arising out of Order-in-Appeal No. 65-Ce/GZB/2006 dated 29.05.2006 passed by the Commissioner (Appeals), Central Excise, Ghaziabad] For approval and signature: Honble Mr. S.S. Kang, Vice President 1. Whether Press Reporters may be allowed to see the order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would 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 of the order? 4. Whether order is to be circulated to the Departmental authorities? M/s. Asian (Hygenic) Food Inds. (P) Ltd. Appellants Vs. CCE, Ghaziabad Respondent
Appearance:
Ms. Seema Jain, Advocate Shri A.K. Rastogi, SDR for the Revenue, Coram:
Honble Mr. S.S. Kang, Vice President Date of Hearing: 12th February, 2008 FINAL ORDER NO._________________ dated __________ Per S.S. Kang:
Heard both sides.
2. Appellants filed this appeal against the impugned order whereby demand was confirmed in respect of inputs found short on which credit has been availed and the finished goods found short. The appellants are not disputing demand of duty as the same has been paid. Only contention of the appellants is that it is not a case for imposition of penalty as there was no intention on their part to evade payment of duty.
3. Contention is also that when the duty has been paid prior to the issuance of show cause notice imposition of penalty is not sustainable.
4. Revenue submitted that the Honble Punjab & Haryana High Court in the case of CCE vs. Omkar Steel Tubes (P) Ltd., reported in 2008 (221) ELT 200 (P&H) has held that in case duty has been paid prior to issuance of show cause notice and there is no allegation of suppression with intent to evade payment of duty, penalty under Section 11AC of the act is imposable. In the present case finished goods were found short and the inputs on which credit has been availed were also found short and there is no evidence on record that the appellants informed the department or in the present proceedings the appellants have not given any explanation in respect of shortage. Therefore, it is a clear case of suppression. I find no merit in the appeal. The same is dismissed.
(Dictated & pronounced in the Open Court.) (S.S. KANG) VICE PRESIDENT Dated 13th February, 2008 RK