Custom, Excise & Service Tax Tribunal
Commissioner Of Customs And vs M/S Amrit Varsha Ispat (P) Limited on 20 May, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. IV Excise Appeal No. 3925 of 2010 SM(Br) Excise Cross Objection NO. 52/2011 [Arising out of Order-In-Appeal No. 198/MRT-I/10 dated 30.8.10 passed by Commissioner (Appeals) of Customs and Central Excise, Meerut. ] For approval and signature: Honble Mr. Sahab Singh, Member (Technical) 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 Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Commissioner of Customs and Appellant Central Excise, Meerut. Vs. M/s Amrit Varsha Ispat (P) Limited Respondent
Appearance:
Mr. M.S. Negi, DR for the Appellant Mr. Alok Arora, Advocate for the Respondent CORAM:
Hon'ble Mr. Sahab Singh, Member (Technical) Date of Hearing /decision: 20.05.2013 ORDER NO .FO/ 56464 /2013-SM(Br) Per Sahab Singh:
This is an appeal filed by the Revenue against order in appeal No. 198/MRT-I/10 dated 30.8.10 passed by Commissioner (Appeals) of Customs and Central Excise, Meerut.
2. Brief facts of the case are that M/s.Amrit Varsha Ispat (P) Ltd. (hereinafter referred to as respondents) are engaged in the manufacture of MS ingots falling under Chapter 72 of the Central Excise Tariff. Central Excise officers visited their factory on 13.8.2008 and shortage of 27.075 MT of MS ingots was detected during the course of physical verification of the stock. The respondents agreed to the shortage found during physical verification and subsequently deposited the duty amounting to Rs. 1,13,222/- on 14.8.08. A show cause notice dated 11.8.09 was issued demanding duty of Rs. 1,13,222/- and also proposing penalty under Rule 25 (1)(a) and (b) of Central Excise Rules read with Section 11 AC of the Central Excise Act. The show cause notice was adjudicated by the original adjudicating authority by order in original No. 20/2010 dated 23.2.10 in which the original adjudicating authority confirmed duty and appropriated the amount already deposited and also imposed penalty of Rs.1,13,222/- under Rule 25 read with Section 11AC of the Central Excise Act. The respondents filed an appeal against order-In-Original before Commissioner (Appeals) who vide their impugned order had reduced the penalty from Rs.1,13,222/- to Rs.25,000/-. Revenue has challenged this impugned order in this appeal.
3. Learned DR appearing for the Revenue submits that on the date of visit to the factory, shortage of goods was detected which was admitted by the respondents and they have deposited the duty amount. Since this is a case of clandestine removal, penalty equal to duty is required to be imposed on the respondents under Section 11 AC of the Central Excise Act. He therefore, submits that Commissioner (Appeals) has not appreciated the facts in proper perspective and reduced the penalty to Rs.25,000/-. He requests that order-in-appeal needs to be set aside and penalty is required to be enhanced to Rs. 1,13,222/-.
4. Learned Advocate appearing for the respondent submits that they have filed cross objection and challenged the appeal on the ground that there was no ingredient mentioned in Section 11 AC proposed in the show cause notice and discussed by the original authority in order-in-original. Under Section 11 AC penalties are imposable if there are ingredients of suppression, willful mis-statement or suppression of facts on the part of the assessee. In the present case, after visit of the Central Excise officers, the respondents paid the duty on the very next day. In such a scenario , there is no case for imposition of penalty equal to demand of duty.
5. After hearing both sides, I find that Commissioner (Appeals) in the impugned order has observed that Section 11 AC of the Central Excise Act is applicable for imposition of amount of penalty equal to the duty only if duty was demanded for the reasons of fraud, collusion or any willful mis-statement or suppression of facts. The Commissioner (Appeals) after going through order-in-original came to conclusion that no such ingredient has been mentioned either in the show cause notice or in the order in original. In the absence of which it is difficult to sustain the penalty equal to duty amount in the present case. I find that finding of the Commissioner (Appeals) has considerable force and in the absence of any suppression or willful mis-statement collusion, it is difficult to invoke section 11 AC in the present case. I therefore, uphold the order in appeal and reject the appeal filed by the respondents.
6. Appeal rejected.
(Pronounced in the open court )
( Sahab Singh ) Member(Technical)
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