Custom, Excise & Service Tax Tribunal
Thilagarathinam Match Works vs Commissioner Of Central Excise on 14 February, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. E/817/2010
(Earlier registered as Appeal No.ST/431/10)
[Arising out of Order-in-Appeal No.115/2010 dated 31.3.2010 passed by the Commissioner of Central Excise (Appeals), Madurai]
For approval and signature:
Honble Mr. M.VEERAIYAN, 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 the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Thilagarathinam Match Works
Appellant
Versus
Commissioner of Central Excise,
Tirunelveli
Respondent
Appearance:
Shri M.Kannan, Advocate Shri K.Balasubramanian, DR For the Appellant For the Respondent CORAM:
Honble Mr.M.Veeraiyan, Technical Member Date of hearing : 14.2.2011 Date of decision : 14.2.2011 Final Order No.____________ This an appeal against the order of the Commissioner (Appeals) No.115/2010 dt. 31.3.2010.
2. Heard both sides.
3. The officers visited the premises of the appellant on 28.12.2007 and inter alia found 9 duplicate invoices in one of the files and seized the same. Shri T.K.T.Thilagarathinam, who was looking after day-to-day management of the factory, admitted having removed consignments of man made safety matches under the cover of these duplicate invoices. It was followed up by payment of duty involved amounting to Rs.4,04,688/- on 29.12.07. The statement was corroborated by the statements of some of the dealers who have received the consignments under these duplicate invoices. The statements of Thilagarathinam and the dealer were not retracted. The show-cause notice dt. 26.6.08 was issued proposing confirmation of duty and imposition of penalty. Original authority vide order dt. 31.10.08 confirmed demand of Rs.4,04,688/- along with interest. He appropriated the amount of Rs.4,04,688/- already paid towards duty and a sum of Rs.3,604/- paid on 17.9.08 towards interest. He imposed penalty of equal amount of Rs.4,04,688/- under Section 11AC and gave option to pay 25% of the penalty under the proviso to Section 11AC. He also imposed penalty of Rs.5,000/- under Rule 27 of the Central Excise Rules, 2002. Commissioner (Appeals) upheld the order of the original authority except to the extent of setting aside penalty of Rs.5000/- imposed under Rule 27 of the Central Excise Rules, 2002.
4. Ld. advocate fairly concedes that duty demand along with interest was not contested before the original authority and the Commissioner (Appeals). He seeks setting aside penalty on the ground that entire duty involved including interest stands paid before issue of SCN. Further, he submits that in the absence of evidence of duty amount stands collected by the appellant, the amount of Rs.32,74,175/- should be treated as cum duty value and, accordingly, the duty demand, interest and penalty should be revised.
5. Ld. DR reiterates the finding and reasoning of the Commissioner (Appeals). He particularly draws my attention to the finding of the Commissioner (Appeals) that the duty demand is actually based on the amounts separately mentioned as amount of duties in the duplicate invoices.
6. I have carefully considered the submissions from both sides and perused the records. Clearance of the excisable goods without payment of duty using duplicate invoices stands admitted by the authorized signatory of the appellant firm. His statement has not been retracted. The amount stands paid. There is corroboration to the fact of the clearance of the goods without payment of duty using duplicate invoices from some of the dealers. Under these circumstances, the demand of duty along with interest stands upheld. The appellant submits that no penalty should be imposed on the ground that entire amount of duty along with interest stands paid before issue of SCN. This submission is not acceptable. Merely because the duty involved stands paid before issue of SCN, provisions of Section 11AC cannot be given a go-by. I also find that the original authority has extended the benefit of concessional penalty provided in terms of proviso to Section 11AC.
7. The other submission by the ld. advocate is that they should be extended the benefit of cum duty value and accordingly demand of duty, interest and penalties should be appropriately reduced. This submission is also not acceptable in as much as the appellants in the duplicate invoices have clearly indicated the value of excisable goods and the duty element involved separately. It is not disputed that duty demanded is exactly same as the total amount of duty mentioned in the 9 duplicate invoices. It is immaterial whether the appellants recovered duty from the buyers or not. In fact, for the purpose of payment of duty, it is not even relevant whether they recovered the prices of excisable goods from the buyers.
8. In view of the above, I do not find any merit in the appeal by the party. The appeal, is therefore, rejected.
(Dictated and pronounced in open court) (M.VEERAIYAN) TECHNICAL MEMBER gs 2