Custom, Excise & Service Tax Tribunal
M/S.Dharampal Satypal vs Cce, New Delhi on 24 May, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/Decision:24.05.2016
Excise Appeal No.E/1789/2007-EX(DB)
[Arising out of Order-in-Appeal No.24-CE/DHL/2007 dated 15.03.2007 passed by the Commissioner (Appeals), Central Excise, Delhi-II]
For Approval and Signature:
Honble Shri B. Ravichandran, Member (Technical)
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
M/s.Dharampal Satypal Appellants
Vs.
CCE, New Delhi Respondent
Appearance:
Rep. by Shri T.R. Rustogi, Advocate for the appellant. Rep. by Ms.K.V. Kumar, AR for the respondent. Coram: Honble Shri B. Ravichandran, Member (Technical) Final Order No. 51880/2016 Dated:24/05/2016 Per B. Ravichandran:
The appeal is against imposition of penalty of Rs.5,00,000/-on the appellants by the Commissioner (Appeals), Delhi-II vide the impugned order dated 15.03.2007. The appellants are engaged in the manufacture of Pan Masala liable to central excise duty. They were availing credit on various inputs in terms of Cenvat Credit Rules, 2004 in terms of provisions of Rule 9(A) of the said Rules, the appellants are to file an Annual Return containing details of inputs. Proceedings were initiated against them for non-filing of such return for the period 2004-05. The Original Authority, on adjudication, imposed a penalty of Rs.1 crore on the appellant in terms of Rule 15 of the Cenvat Credit Rules, 2004. On appeal, the Commissioner (Appeals) vide the impugned order reduced the penalty to Rs.5,00,000/-. Aggrieved by this, the appellant filed this appeal.
2. Having heard both the sides and upon perusal of appeal records, it is clear that both the lower authorities have seriously erred in applying the legal provisions relevant to the case. First of all, non-filing of Annual Return, as stipulated in Rule 9 of Cenvat Credit Rules, 2004, cannot be penalized in terms of Rule 15 of the said Rules. Further, it is pointed by the ld. Counsel for the appellant that the show cause notice invoked Rule 25 of the Central Excise Rules not the Rules under which the penalty was imposed by the Original Authority.
3. A perusal of the original order as well as the impugned order nowhere reveals that reason for applying Rule 15 in the present proceedings. It is seen that in a similar set of facts, the penalty imposed was challenged by the same appellant. The Tribunal vide Final Order No.1503/2009-SM (BR) dated 17.11.2009 held that the contravention for which penalty has been imposed is only a procedural violation and subsequently, the required return has been filed later. Rule 9 A does not provide for any penal provisions for imposing penalty and Rule 15 does not cover the scope of the present proceedings. In the present case also, it is seen that other than the non-filing of return, no other allegation has been made against the appellant. The returns stand filed thereafter. Both the lower authorities have fallen in error in not considering the correct legal position and imposing penalty based on in-applicable legal provisions. As such, the impugned order is not sustainable. The same is set aside and the appeal is allowed.
[Order dictated & pronounced in open court] ( B. Ravichandran ) Member (Technical) Ckp.
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