Custom, Excise & Service Tax Tribunal
M/S. Nava Karnataka Steels Pvt Ltd vs Commissioner Of Central Excise, ... on 21 September, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/365/2012-SM [Arising out of Order-in-Appeal No. 140/2011 dated 05/11/2011 passed by the Commissioner of Central Excise (Appeals), Mangalore.] M/s. NAVA KARNATAKA STEELS PVT LTD ANANTAPUR ROAD, BELLARY 583101 Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax BELGAUM NO. 71, CLUB ROAD, CENTRAL EXCISE BUILDING, BELGAUM, - 590001 KARNATAKA Respondent(s)
Appearance:
Mr. A.S. MONNAPPA, Advocate NO.128, 3RD STAGE, VINAYAKA LAYOUT, VIJAYANAGAR, BANGALORE -
KARNATAKA For the Appellant Mr. Pakshirajan, AR For the Respondent Date of Hearing: 21/09/2017 Date of Decision: 21/09/2017 CORAM:
HON'BLE SHRI M.V.RAVINDRAN, JUDICIAL MEMBER Final Order No. 22160 / 2017 Per : M.V.RAVINDRAN This appeal is directed against Order-in-Appeal No.140/2011 dated 5.11.2011.
2. Heard both sides and perused the records.
3. After considering the submissions made by both sides, I find that the issue is of short-payment of duty on goods cleared to depot/consignment agents during the period July 2004 to January 2008. The adjudicating authority has confirmed the demand along with interest and also imposed equivalent amount of penalty. Aggrieved by such an order, an appeal was preferred before the first appellate authority by the appellant, who upheld the Order-in-Original.
4. When the matter came up before this Bench on 2.8.2017, the learned counsel was directed to show evidence of payment of total interest involved before deciding the issue on penalty as the counsel has made a plea that they are only contesting the penalty. Today, when the matter was called out, learned counsel is not able to show evidence that the entire interest liability has been paid and the short-paid duty is discharged. It is only his case that there is an excess payment of approximately Rs.4/- lakh as recorded by the first appellate authority. He is not able to confirm the exact quantum of interest payable. Another point raised by him is regarding extending the benefit of provision of Section 11AC of paying 25% of penalty.
5. On careful consideration of the submissions, I find that the appellant has not followed the oral direction given by the Bench on 2.8.2017 as to show evidence of payment of entire interest liability. It is the submission of the learned counsel that the appellant is before National Company Law Tribunal (NCLT) under the provisions of the Insolvency and Bankruptcy Code 2016 (Insolvency Act), in the form of letter addressed to him by the said appellant will also not carry the matter any further. I find that the Honble High Court of Bombay in the case of Viraj Alloys Ltd.: 2017 (346) ELT 192 (Bom.) has categorically held that mandatory penalty under Section 11AC, benefit can be extended only if the appellant has discharged interest liability. In the absence of such evidence, I find that all the arguments put forth by the learned counsel needs to be rejected.
6. In view of the foregoing, the impugned order is upheld and the appeal stands rejected.
(Order was dictated in Open Court on 21/09/2017) M.V.RAVINDRAN JUDICIAL MEMBER rv 3 1