Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Mumbai vs Sai Shradha Exim Pvt. Ltd on 18 January, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. III APPEAL Nos. E/239, 1448/07 (Arising out of Order-in-Appeal No. AT/715/M-II/2006 dated 17.11.2006 passed by Commissioner of Central Excise (Appeals), Mumbai-II) For approval and signature: Hon'ble Ms. Jyoti Balasundaram (Vice President) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Commissioner of Central Excise, Mumbai Appellant Vs. Sai Shradha Exim Pvt. Ltd. Respondent Surya Pharmaceutical Ltd. Appearance: Shri Pramod Kumar, Authorised Representative (JDR), for appellant Shri D.H. Nadkarni, Advocate, for Sai Shradha Exim Shri Bharat Raichandani, Advocate, for Surya Pharmaceuticals CORAM: Hon'ble Ms. Jyoti Balasundaram, Vice President Date of Hearing: 18.1.2008 Date of Decision: 18.1.2008 ORDER NO................................. Per: Ms. Jyoti Balasundaram, Vice President
The brief facts of this case are that M/s. Surya Pharmaceutical Ltd. has supplied 5 MT of Amoxycilline to M/s. Sai Shradha Exim Pvt. Ltd. for the purpose of export under DEEC scheme on 27.11.2005 against CT-1 certificate issued to them. The consignment was detained and seized by DRI while still lying in the godown of the transporters, for the reason that identical goods obtained by Sai Shradha Exim under similar conditions were found diverted and substituted with soap stone powder. Surya Pharmaceutical requested for release of the seized goods, which request was rejected by the Assistant Commissioner who proceeded to confiscate the goods with an option to redeem the same on payment of a fine of Rs.5,00,000/-, confirmed a duty demand of Rs.8,34,155/- together with interest @ 24% against Sai Shradha Exim and also imposed a penalty equal to duty upon them. Both Sai Shradha Exim and Surya Pharmaceutical filed appeals before the Commissioner (Appeals). Vide two separate orders dated 17.11.2006, the Commissioner (Appeals) disposed of both appeals; in the appeal filed by Sai Shradha Exim he upheld the penalty of amount equal to duty, but held that duty liability confirmed against them could be discharged by Surya Pharmaceutical. In the appeal filed by Surya Pharmaceutical, the Commissioner (Appeals) held that the goods may be released to them (Surya) on payment of the duty. The confiscation of the goods was set aside as not sustainable under Rule 25/27 of the Central Excise Rules.
2. The Revenue is in appeal against both these orders.
3. I have heard both sides.
4. I find that the duty demand in this case has been paid by Surya Pharmaceutical who had claimed the goods and who had cleared the goods on payment of duty. (The Commissioner of Central Excise, Mumbai-II has accepted the order dated 17.11.2006 of the Commissioner (Appeals), who had ordered release of the goods to Surya Pharmaceutical, on 24.11.2006, and vide letter dated 27/28.11.2006, the Additional Commissioner has communicated to the jurisdictional Assistant Commissioner that the goods may be released after due verification and other legal compliance). The penalty imposed on Sai Shradha Exim has been set aside in their appeal bearing No. E/72/07, vide final order No. A/542/C-IV/SMB/2007 dated 15.3.2007. Therefore, the appeal of the Revenue against Sai Shradha Exim becomes infructuous. The appeal of the Revenue against Surya Pharmaceutical also becomes infructuous, as the duty liability on the goods has already been discharged by them and there is no penalty imposed upon them.
5. In the result, both appeals are dismissed as infructuous.
(Pronounced in Court) (Jyoti Balasundaram) Vice President tvu 1 3