Custom, Excise & Service Tax Tribunal
Cce, Chandigarh vs M/S Shiv Saraswati Steel Strips (P) Ltd on 11 October, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV Excise Appeal No. 2067 and 2473 of 2009 (SM) [Arising out of the Order-in-Appeal No. 200-203/CE/CHD-1/2009 dated 27/05/2009 passed by The Commissioner (Appeals), Central Excise, Chandigarh.] For Approval and signature : Honble Shri Rakesh Kumar, 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 would 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 : Department Authorities? CCE, Chandigarh Appellant Versus Shri Jagtar Singh, Director of ] M/s Shiv Saraswati Steel Strips (P) Ltd. ] Respondent
and vice-versa Appearance Shri R.K. Verma, Authorized Representative (DR) for the appellant/respondent.
None - for the respondent/appellant.
CORAM : Honble Shri Rakesh Kumar, Member (Technical) DATE OF HEARING : 11/10/2013.
Final Order No. 58112-58113/2013 Dated : 11/10/2013 Per. Rakesh Kumar :-
The facts during rise two these appeals are, in brief, as under.
1.1 M/s Shiv Saraswati Steel Strips (P) Ltd., Mandi Gobindgarh (hereinafter referred to as appellant) are manufacturers of bars falling under Chapter heading 72142090 of the Central Excise Tariff. On 01/10/07, the Jurisdictional Central Excise officers intercepted a truck No. HR-38/3476 whose driver was Shri Tarsem Singh. On demand, the driver produced invoice No. 312 dated 01/10/07 issued by the appellant regarding clearance of 15.06 M.T. of bars. Driver also produced a weighment slip No. 4260 dated 1/10/2007 of Dharamkanta mentioning the weight of the goods as 20.52 M.T. The weighment slip had been issued by M/s Ganpati Computer Kanda, Mandi Gobindgarh situated near the factory. There was thus excess of 5.454 M.T. of finished goods loaded in the truck, the duty involved on which was Rs. 78,923/- + education cess of Rs. 1,578/- and secondary and higher education cess amounting to Rs. 789/- (total duty of Rs. 81,290/-). The goods loaded in the truck alongwith the truck were placed under seizure. After issue of show cause notice, the Jurisdictional Assistant Commissioner vide order-in-original dated 30/09/08 ordered confiscation of the seized goods totally weighing 20.52 M.T. including the excess stock of 5.45 M.T. with option to be redeemed on payment of redemption fine in addition to payment of duty for clearance of 5.45 M.T. of bar without issue of invoice. Beside this, penalty of Rs. 81,290/- equal to the duty involved was imposed on the appellant under Section 11AC of Central Excise Act readwith Rule 25 of the Cenvat Credit Rules penalty of Rs. 20,000/- on Shri Jagtar Singh, Director of appellant company and penalty of Rs. 10,000/- on Shri Tarsem Singh, driver of the appellant company was imposed under Rule 26. The truck from which the goods were seized was also ordered to be confiscated with option to be redeemed on find of Rs. 20,000/-. On appeals being filed to Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 25/07/09 while upholding the confiscation of the goods and imposition of penalty on the appellant company, set aside the penalty on Shri Jagtar Singh, Director of the appellant company under Rule 26. The penalty on the truck driver as well as confiscation of the truck and redemption fine was also set aside on the ground that neither the driver nor the owner of the truck had knowledge about the excess goods loaded in the vehicle. Against the order of the Commissioner (Appeals) upholding the confiscation of the goods loaded in the truck the appellant have filed the appeal and against the portion of the Commissioner (Appeals)s order dropping the penalty on Shri Jagtar Singh the Director of the appellant company, the Revenue is in appeal.
2. Though this matter was listed a number of times the notice for hearing had been issued to the appellant company and its Director Shri Jagtar Singh, well in advance, they have not appeared. Today also, notice for hearing has been sent well in advance, but even this time also, none representing the appellant company or its Director has appeared. In view of this, so far as the appellant company and its Director Shri Jagtar Singh are concerned, the matter is being decided ex-parte in accordance with Rule 21 of CESTAT Procedure Rules.
3. Heard Shri R.K. Verma, the learned DR, who with regard to upholding the confiscation of the goods defended the impugned order by reiterating the findings of the Commissioner (Appeals). With regard to the Commissioner (Appeals)s order setting aside the penalty on Shri Jagtar Singh, he pleaded that this portion of the order is not correct and in this regard, he reiterates the grounds of appeal in the Revenues appeal.
4. I have considered the submissions of the learned DR and have gone through the records.
5. So far as the confiscation of the goods loaded in the truck is concerned, it is seen that it is not disputed that while the invoice accompanying the goods was for 15.065 M.T. of bars, the weight of the goods actually loaded in the truck was 20.5 M.T. and, as such, 5.455 M.T. of the bars had been cleared without payment of duty. It is also seen that though subsequently the appellant paid duty on the excess quantity, on the date of interception of the truck, there is no entry in the RG-1 register regarding clearance of the goods covered under the invoice. In view of this, so far as the Commissioner (Appeals)s order upholding the confiscation of the goods, redemption fine and imposition of penalty on the appellant company under Section 11AC is concerned, the same is upheld and as such the appeal filed by M/s Shiv Saraswati Steel Strips (P) Ltd. is concerned, is dismissed.
6. As regards the Revenues appeal, the same is against the portion of the Commissioner (Appeals)s order setting aside the imposition of penalty on Shri Jagtar Singh, Director under Rule 26. The penalty on Shri Jagtar Singh had been imposed on the ground that he had dealt with the excisable goods which he knew or reason to believe were liable for confiscation, for which the penalty under Rule 26 is attracted. Just because penalty under Section 11AC readwith Rule 25 of Central Excise Rules had been imposed on the appellant company M/s Shiv Saraswati Steel Strips (P) Ltd., this cannot be the ground for non-imposition of penalty on is Director or other persons who had dealt with the excisable goods in the manner mentioned in Rule 26 with knowledge the goods were liable for confiscation. In view of this, the Commissioner (Appeals)s order setting aside the penalty on Shri Jagtar Singh is not correct and the same is set aside and on this point, the order passed by the original Adjudicating Authority is restored.
7. In view of the above discussion, while the appeal filed by M/s Shiv Saraswati Steel Strips (P) Ltd. is dismissed, the appeal filed by the Revenue is allowed and on this point the order of the Assistant Commissioner is restored.
(Pronounced in the open court.) (Rakesh Kumar) Member (Technical) PK ??
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