Custom, Excise & Service Tax Tribunal
M/S. Aditya Birla Nuvo Limited vs Commissioner Of Central Excise, ... on 23 July, 2009
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH:KOLKATA
EXCISE APPEAL NO.E-64/09
[ARISING OUT OF ORDER-IN-APPEAL NO.18/KOL-IV/2008 DATED 16.12.2008 PASSED BY COMMISSIONER OF CENTRAL EXCISE (APPEALS), KOLKATA-IV]
FOR APPROVAL AND SIGNATURE
SHRI S.S.KANG, HONBLE VICE-PRESIDENT
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
Authorative report or not?
3. Whether His Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
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M/S. ADITYA BIRLA NUVO LIMITED APPELLANT(S) VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-IV RESPONDENT(S) APPEARANCE:
SHRI D.K.SAHA, CONSULTANT FOR THE APPELLANTS SRI A.K.SHARMA, J.D.R. FOR THE RESPONDENTS CORAM:
SHRI S.S.KANG, VICE PRESIDENT DATE OF HEARING/ DECISION: 23.07.09 ORDER NO.. Per SHRI S.S.KANG Heard both sides.
2. The Appellants filed this Appeal against the impugned Order whereby the penalty of equal amount of the confirmed demand was imposed under Section 11AC of the Central Excise Act, 1944. The Appellants submitted that they cleared the goods to Ship Builders by availing the benefit of Notification No.64/95-CE dated 16.03.1995 and the same has been reflected in the RT-12 Returns. It is only by the decision of the Tribunal in the case of Goa Paints & Allied Products vs. C.EX, Goa 2001(127) ELT 489 (Tri.-Mum.), the benefit of the above Notification was denied in respect of the goods not supplied as ship-stores. In view of this, the Appellants had not contested the demand of duty which was confirmed by denying the benefit of the Notification. The contention is that as per the provisions of Section 11AC, the penalty is imposable where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the Rules made thereunder with intent to evade payment of duty. The Appellants had not suppressed any fact with intent to evade payment of duty as the Appellants were reflecting the clearance in their relevant RT-12 Returns by claiming the benefit of the Notification, hence the penalty under Section 11AC is not sustainable. The Appellants also relied upon the decision of the Tribunal in their own case whereby the Tribunal, vide Final Order No.S-31/A-28/KOL/06 dated 17.01.2006 held that the extended period of limitation is not invocable in respect of the demand which was confirmed on the same grounds. The Tribunal remanded the matter to the Adjudicating Authority for re-quantifying the demand for the normal period of limitation.
3. The contention of Revenue is that as the Appellants were wrongly availing the benefit of the Notification, therefore the Appellants are liable for penalty under Section 11AC of the Act.
4. In this case, the Appellants are only contesting the imposition of penalty under Section 11AC of the Act. As per the provisions of Section 11AC, in case of fraud, collusion, misstatement or suppression of facts with intent to evade the payment of duty, the assessee is liable for penalty equal to the amount of demand. In the present case, the Appellants were clearing the goods by availing the benefit of the Notification and the same were reflected in the RT-12 Returns. This fact is not in dispute. In these circumstances, I find merit in the contention of the Appellants that there is no suppression or willful misstatement or fraud on their part with intent to evade payment of duty. The impugned Order whereby the penalty under Section 11AC of the Act is imposed, is set aside and the Appeal is allowed as indicated above.
Pronounced and dictated in the open court.
Sd/-
(S.S.KANG) VICE-PRESIDENT DUTTA/ 3 EXCISE APPEAL NO.E-64/09