Custom, Excise & Service Tax Tribunal
M/S.R.N.S. Containers Pvt. Ltd vs Cce, New Delhi-Iv, Faridabad on 7 August, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI.
Date of hearing/decision:7.8.2013
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?
Excise Appeal No.E/2057/2011-EX (SM)
(Arising out of Order-in-Appeal No.56/CE/APP./DLH-IV/2010 dated 22.7.2011 passed by the Commissioner of Central Excise (Appeals), Faridabad)
M/s.R.N.S. Containers Pvt. Ltd. Appellants
Vs.
CCE, New Delhi-IV, Faridabad Respondent
Appearance: Shri N.K. Sharma, Advocate for the appellant.
Shri P.K. Sharma, AR for the respondent.
Coram : Honble Shri Rakesh Kumar, Member (Technical) Final Order No.57606/2013/Dated:7/08/2013 Per Rakesh Kumar:
The appellant, manufacturers of excisable goods, defaulted in payment of central excise duty for the month of September, 2008 and the duty instead of being paid by 5.10.2008 was paid along with interest on 14.11.2008. Thus, in terms of the provisions of Rule 8(3A), during the period from 5.11.2008 to 14.11.2008, the appellant forfeited the facility of paying duty on monthly basis and utilizing cenvat credit and accordingly, during this period, they were required to pay duty consignment-wise and without utilizing the cenvat credit. The appellant did not pay duty consignment-wise and also paid duty of Rs.33,409/- through cenvat credit. It is on this ground that after issue of show cause notice, the Asstt. Commissioner vide order-in-original dated 29.11.2010 directed the appellant to pay duty of Rs.33,409/- through PLA and imposed penalty of equal amount under Rule 25 and another penalty of Rs.5,000/- under Rule 27 of the Central Excise Rules. On appeal being filed to the Commissioner (Appeals), the Commissioner (Appeals) vide order-in-Appeal dated 22.7.2011 upheld the Asstt. Commissioners order. Against this order of the Commissioner (Appeals), this appeal has been filed.
2. Heard both the sides.
3. Shri N.K.Sharma, ld. Counsel for the appellant pleaded, that it is not contested that in the impugned order with regard to payment of duty of Rs.33,409/- through PLA, it is also mentioned that on payment of duty, the appellant would get the same amount of cenvat credit re-credited to cenvat credit account through PLA and, therefore, he is not disputing this part of the order, he is disputing only the imposition of penalty of equal amount under Rule 25, that in view of the judgement of the Honble Gujarat High Court in the case of CCE Vs. Saurashtra Cement Ltd. reported in 2010 (260) ELT 71 (Gujarat) for failure to pay duty consignment-wise and without utilizing the cenvat credit during the forfeiture period, the penalty is imposable only under Rule 27 of the Central Excise Rules under which the minimum penalty imposed is Rs.5,000/- and not under Rule 25 of the Rules. He, therefore, pleaded that the penalty of Rs.33,409/- upheld on the appellant is not sustainable.
4. Shri P.K.Sharma, Authorised Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals).
5. I have heard the submissions from both the sides and perused the records.
6. In the impugned order with regard to payment of duty of Rs.33,409/- through PLA, which had earlier been paid through the cenvat credit account, is not being disputed. However, if the appellant paid the duty through PLA, they would be eligible for re-credit of the same duty, which had earlier been paid through cenvat credit account. As regards the question of penalty under Rule 25 of the Central Excise Rules, in view of the judgement of the Honble Gujarat High Court in the case of CCE Vs. Saurashtra Cement Ltd. (supra), for such contravention, it is only the penalty under Rule 27 of the Rules, which is imposable and which has already been imposed.
7. In view of this, the penalty of Rs.33,409/- imposed on the appellant under Rule 25 of the Central Excise Rules is set aside. The impugned order stands modified as above.
( Rakesh Kumar ) Member (Technical) Ckp.
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