Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise, Kol.Iv vs M/S Birla Ngk Insulators (P) Ltd on 12 May, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.EDM-430/05
Arising out of Order in Appeal No.88/Kol.IV/05 dated 31.5.2005 passed by Commr. of Central Excise, Kolkata.
For approval and signature:
SHRI S. S. KANG, HON'BLE VICE PRESIDENT
DR. CHITTARANJAN SATAPATHY, HON'BLE TECHNICAL MEMBER
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 should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Central Excise, Kol.IV
...APPELLANT(S)
VERSUS
M/s Birla NGK Insulators (P) Ltd.
RESPONDENT (S)
APPEARANCE Shri K. P. Singh, SDR for the Appellant-Revenue (s) Shri N. K. Chowdhury, Advocate for the Respondent (s) CORAM:
SHRI S. S. KANG, HON'BLE VICE PRESIDENT DR. CHITTARANJAN SATAPATHY, HON'BLE TECHNICAL MEMBER Date of hearing & decision : 12.05.2009 ORDER NO......................................................................................... Per S. S. Kang :
Heard both sides. The Revenue filed this appeal against the impugned order whereby the Commissioner (Appeals) set aside the demand, imposition of penalty and interest.
2. The contention of the Revenue is that the respondents are manufacturing and clearing the goods to their other factory for captive consumption and paying duty after taking into consideration the cost of raw materials whereas the respondents are to pay duty as per the provisions of Rule 8 of the Central Excise Valuation Rules. The contention of the Revenue is that as the respondents are not paid duty as per the provisions of Valuation Rules, they are liable to pay duty and also liable to penalty and interest.
3. The counsel on behalf of the respondents fairly submitted that the respondents are liable to duty as per the provisions of Rule 8 of the Central Excise Valuation Rules @ 115% of the cost of production. Duty has already been paid as per the provisions of this Rule. We find that as the respondents are admitted that as the duty has been paid late, they are liable to pay interest as per the provisions of Section 11AB of the Act. The only contention of the respondents is that as there is no allegation of suppression of facts with intent to evade payment of duty against the respondents and the show-cause notice was issued within normal period of limitation. Therefore, the provisions of Section 11AC of the Central Excise Rules, are not applicable.
4. We find that the respondents are liable to pay duty as per the provisions of Rule 8 of Valuation Rules and also liable to pay interest as per the provisions of Section 11AB of late payment of duty and the same has been admitted by the respondents.
5. We find that the penalty under Section 11AC of the Act is for suppression of fact, fraud etc. and as there is no suppression on the part of the respondents and the issue is in respect of valuation of the captively consumed goods and the demand is within normal period of limitation, we find no infirmity in the impugned order and the penalty imposed under Section 11AC is set aside. The impugned order is modified as indicated above. The appeal is partly allowed.
(Dictated and pronounced in the open Court)
Sd/ Sd/
( DR. CHITTARANJAN SATAPATHY ) ( S. S. KANG )
TECHNICAL MEMBER VICE PRESIDENT
mm
2
Ex.Appeal No.EDM-430/05