Custom, Excise & Service Tax Tribunal
M/S Shalimar Paints Ltd vs Cce Nasik on 5 October, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. E/281/09 - Mum
(Arising out of Order-in-Appeal No. IPL/228/NSK/2008 dated 23.12.08 passed by the Commissioner of Central Excise & Customs (Appeals), Nasik)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
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?
M/s Shalimar Paints Ltd.
:
Appellants
Versus
CCE Nasik
Respondents
Appearance Shri V.R. Kelkar, Consultant for Appellants Shri B.P. pereira, JDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 05.10.10 Date of Decision :05.10.10 ORDER NO.
Per : Ashok Jindal The appellant has filed this appeal against the imposition of penalty under Rule 25 (I)(b) of the Central Excise Rules, 2002 and Rule 13 of CENVAT Credit Rules, 2002.
2. The facts in brief are that during the visit of Preventive Officers at the factory, the stock of finished goods and some raw materials were found short and the same were admitted by the appellant and paid duty. Thereafter, a show-cause notice was issued to the appellant proposing confiscation of seized goods and penalty under Rule 25 of Central Excise Rules, 2002 and Rule 13 of CENVAT Credit Rules, 2002 read with Section 11 AC of the Central Excise Rules, 1944 to be imposed on the appellants. The same was confirmed by the Commissioner (Appeals). Aggrieved from the said imposition of penalty, the appellant is before me.
3. The learned Advocate appearing on behalf of the appellant submits that the appellants are a big unit and are paying more than Rs.16 Crores as duty and manufacturing more than 4000 items a year. There may be some discrepancy while taking stock before the Preventive Officers. Moreover in some cases, it was found excess and in some cases it was found short. In that event, there was no malafide intention to the appellant to clear the goods without payment of Central Excise duty and in the impugned order the penalties have been imposed only under Rule 25 of Central Excise Rules, 2002 and Rule 13 of CENVAT Credit Rules, 2002 read with Section 11 AC of the Central Excise Rules, 1944. In that event there may be some technical mistake and for such technical mistake, penalty of Rs.70,000/- is highly excessive.
4. On the other hand the learned DR reiterated the impugned order and submitted that it is an admitted case of the appellant. Hence, the penalty imposed by the lower authority is appropriate in this case.
5. I have gone through the submissions made by both the sides. In this case, the penalties are imposed on the appellants under Rule 13 of the CENVAT Credit Rules, 2002. As it has been proposed in the show-cause notice the penalties to be invoked under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944 and the penalties has been imposed simply by contravening the provision of Central Excise Rules but there is no finding of the lower authorities whether there is any intention to evade duty or not. In that event, penalty under Rule 25 is not leviable on the appellant. Accordingly, the impugned order levying penalty is set aside. The appeal is allowed with regard to penalty only.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) nsk 3