Custom, Excise & Service Tax Tribunal
M/S Ramco Industries Ltd vs Commr. Of Central Excise, Haldia on 31 March, 2017
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Ex.Appeal No.388/12
Arising out of Order-in-Appeal No.11/HAL/2012 dt. 16.03.2012 passed by Commr. of Central Excise (Appeals), Kolkata
M/s Ramco Industries Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise, Haldia
RESPONDENT (S)
APPEARANCE Shri R. Parthasarathy, Consultant for the Applicant Shri S. S. Chattopadhyay Supdt. (A.R.) for the Revenue CORAM:
SHRI P. K. CHOUDHARY, HONBLE JUDICIAL MEMBER SHRI DEVENDER SINGH, HONBLE TECHNICAL MEMBER DATE OF HEARING & PRONOUNCEMENT : 31. 03. 2017 ORDER NO.F/O/75558/2017 Per Shri Devender Singh :
The present appeal is filed by the appellant against the impugned Order-in-Appeal No.11/HAL/2012 dt. 16.03.2012 passed by Commr. of Central Excise (Appeals), Kolkata.
2. Brief facts of the case are that the appellant is a manufacturer of cement falling under Chapter 25 of Central Excise Tariff Act, 1985 and were availing benefit of Notification No.4/2007-CE dated 1.3.2007 as amended. They were manufacturing cement bags as well as cement in bulk and they were also clearing cement in bulk @ Rs.400/- per ton whereas the rate of cement per bag was Rs.350/- per ton. The period involved in this appeal is March, 2007 to February, 2008. While availing benefit of the above Notification for clearance of cement in bulk form, the appellants applied the rate of Rs.350/- per ton. In the process, the short paid duty was to the tune of Rs.2,27,014/-. The case was detected during the course of audit of the company. Show-cause notice dated 03.03.2011 was issued for demand of duty along with interest and imposition of penalty under Section 11AC of Central Excise Act, 1944. The company did not pay the duty even after its detection by audit or till 2014.
3. The ld.Consultant, Shri R.Parthasarathy, appearing on behalf of the appellant submits that the appellant is not contesting the demand and the interest, they are only praying for waiver of penalty. He further submits that the mistake for non-payment of duty is a bona fide mistake on the part of the person, who was in-charge for looking into this matter and they had no intention to evade payment of duty. He also points out that the clearance was made to their own unit at Asbestos Division. He also pleads that the entire situation is revenue neutral. On a query from the Bench, he confirms that the duty amount was paid only at the stage of compliance for predeposit with the direction of the Tribunal in their Stay Application vide Order No.SO/75410/2014 dated 10.04.2014, but interest has not been paid so far. He relies on the following case laws:
(i) CCE, Noida Vs. India Yamaha Motor Pvt. Ltd. : 2014 (302) ELT 394 (Tri.-Del.) ;
(ii) CCE, Chandigarh Vs. Smatel Electron Devices. : 2010 (254) ELT 529 (Tri.-Del.) ;
(iii) Hindustan Zinc Ltd. Vs. CCEx. Jaipur II : 2008 (232) ELT 687 (Tri.-Del.) ;
(iv) Siddharth Tubes Ltd. Vs. CCEx. Indore : 2008 (228) ELT 193 (Tri.-Del.) ;
(v) P. T. C. Industries Ltd. Vs. CCEx. Jaipur I : 2003 (159) ELT 1046 (Tri.-Del.) ;
4. The ld.A.R.for the Revenue, submits that non-payment of duty was detected during the course of audit and if it was a bona fide mistake, the assessee would have paid the duty either immediately on being pointed out or before issuance of show-cause notice. The duty was not paid by the appellant even after getting the Order-in-Original dt. 26.07.2011 and Order-in-Appeal dt. 16.03.2012. They only paid the amount as predeposit on the direction of CESTATs Stay Order (supra). He also relies on the following case laws :
(i) Star Industries Vs. Commr. of Customs (Imports), Raigad : 2015 (324) ELT 656 (S.C.) ;
(ii) Commr. of Central Excise, Mumbai Vs. Mahindra & Mahindra : 2005 (179) ELT 21 (S.C.).
5. We have heard both sides and perused the available records. We find that the ld.Consultant for the appellant has mainly pleaded on the ground of inadvertent mistake on their part for not paying the duty and on the issue of revenue neutrality. Admittedly, the appellants were availing the benefit of Notification No.4/2007-CE dated 1.3.2007. Availing of an exemption Notification is a positive act, in which the appellant has to apply his mind and has to correctly avail the benefit of Notification to which goods are eligible. We agree with ld.A.R. that had it been a bona fide mistake, the appellant would have promptly paid the duty liability on its being pointed out but they waited and waited. Only when the appellate Tribunal directed them to pay the duty , then they paid the same for reporting compliance. The interest has not been paid so far. The conduct of the assessee does not support their case. In respect of the revenue neutrality, in the case law cited by the appellant in the case of Commr. of Central Excise & Customs, Noida Vs. India Yamaha Motor Pvt. Ltd. (supra), the appellant had paid the duty even befeore issuance of show-cause notice. The other case laws cited by the appellant, are related to valuation and classification issues and not where exemption benefit was availed. Besides, the Honble Supreme Court in the case of M/s Star Industries (supra), has held as under :
35. It was submitted by the ld.counsel for the assessee that the entire exercise is revenue neutral because of the reason that the assessee would, in any case, get Cenvat credit of the duty paid. If that is so, this argument in the instant case rather goes against the assessee. Since the assessee is in appeal and if the exercise is revenue reutral, then there was no need even to file the appeal. Be that as it may, if that is so, it is always open to the assessee to claim such a credit. In these circumstances, it is clear that had the Audit not detected the case, the duty would not have been paid by the assessee. Thus, there is clear intent to evade. We do not find any case for waiver of penalty as there was a positive act on the part of the appellant, which led to evasion of duty.
6. In view of the above, we find that the order of the ld.Commissioner (Appeals) is sustainable and accordingly, we hold the same.
7. In the result, the appeal is dismissed.
(Dictated and pronounced in the open Court)
Sd/ Sd/
(P. K. CHOUDHARY) (DEVENDER SINGH)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
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Ex.Appeal No.388/12