Custom, Excise & Service Tax Tribunal
Cce, Hyderabad vs M/S. Kumar Metallurgical Corporation ... on 8 March, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court I
Date of Hearing: 08/03/2010
Date of decision:08/03/2010
Appeal No.E/828/08
(Arising out of Order-in-original No.14/2008-CE-HYD-III-Commr.
Dt. 11/7/2008 passed by CC&CE, Hyderabad)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
CCE, Hyderabad
..Appellant(s)
Vs.
M/s. Kumar Metallurgical Corporation Ltd.
Respondent(s)
Appearance Mr.M.M.Ravi Rajendran, JDR for the Revenue.
Mr.K.S.Ramesh, Consultant for the respondent.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2010 Per M.V.Ravindran This appeal is filed by the Revenue against the Order-in-original No.14/2008-CE-HYD-III-Commr. Dt. 11/7/2008.
2. After hearing both sides and perusal of the records, I find that the issue involved in this case is regarding imposition of penalty on the respondent for contravention of provisions of Central Excise Rules, 2002. The respondent is working under self removal procedure, wherein respondent is required to discharge the duty on the goods cleared during the month by 5th of next month. In this case, the respondent had delayed the discharge of duty liability for the period April, 2003 to March, 2005. It is also on record that the entire duty liability has been discharged albeit belatedly, by the appellant by month or so, they have also discharged the interest on such amount so belatedly paid by them. Show cause notice was issued for imposition of penalty. The adjudicating authority after hearing the respondents, imposed a penalty of Rs.10,000/- under Rule 25 of Central Excise Rules, 2002. Aggrieved by such an order, Revenue is in appeal before the Tribunal.
3. It is the contention of the ld. DR that the appellant has contravened provisions of sub-rule 3 of Rule 8. It is also his submission that the outstanding duty should have been paid along with interest till the amount of duty has been discharged. It is also his submission that the ld. Commissioner should have imposed penalty equal to the amount of duty which have been sought to be belatedly paid by the respondent. It is his submission that penalty imposable under Rule 25 for the above period is the amount not exceeding the duty on the excisable goods involved or Rs.10,000/- which ever is greater. He would rely upon the following decisions.
1. Vidushi Wires Pvt. Ltd. Vs. UOI [2003(156) ELT 168(Bom.)]
2. Mullaji Prints Pvt. Ltd. Vs. UOI [2005(191) ELT 90(Guj.)]
3. CC, Mumbai Vs. Tamil Nadu Petro Products Ltd. [1999(106) ELT 462(Tri.)]
4. Sam Turbo Inds. Ltd. Vs. CCE, Salem [2006(200) ELT 87(Tri. Chennai)]
4. Ld. Consultant appearing on behalf of the respondent submits that the show cause notice only talks about imposition of penalty and there is no determination of the duty to come to a conclusion that equal amount of duty is imposable as penalty. He would submit that the delayed payment of duty is a question of fact and is on record and it has been recorded in the adjudication order by the ld. Commissioner.
5. I have considered the submissions made at length by both sides and perused the records. It is undisputed that the respondent had discharged the duty liability belatedly by contravening the provions of Rule 8 of the Central Excise Rules, 2002. Show cause notice was issued for imposition of penalty under Rule 25 of the said rules. I find that the ld. Commissioner while coming to conclusion that penalty of Rs.10,000/- would suffice to meet the ends of justice, recorded the following findings:-
5. I have considered relevant records including the oral submissions made by the assessee. It is not disputed that assessee had defaulted in payment of duty and thereby they had contravened the provisions of Rule 8 of Central Excise Rules. I also find that for the outstanding dues the assessee have been granted permission for payment in installments by the Department vide letter C.No.HQIII/ARC/V/12/2006-Arr(PF) dt. 22/4/2008. Only question to be decided is whether the assessees are liable for penalty under Rule 25 or not?
6. The fact of default in payment of duty is not disputed and I also find that the assessee has defaulted in on many occasions to be precise in 13 months during April, 2003 to March, 2005. During this period the maximum penalty which could be imposed under Rule 25 was Rs.10,000/-.
6. It can be seen from the above reproduced portion of the findings that the respondent has been given permission for payment of duty in installments by the Department vide letter C.No.HQIII/ARC/V/12/2006-Arr(PF) dt. 22/4/2008. Revenue authorities were aware of the belated payments.
7. In my considered view, the provisions of Rule 25 which have been invoked are correct. At the same time, equal amount of penalty is uncalled for as Revenue authorities were informed by the respondent about the financial exigencies and they were given permission for making the duty payment in installments. The penalty imposed on the respondent by the adjudicating authority would suffice and would meet the ends of justice.
8. I do not find any merits in the appeal filed by the Revenue. I hold that the adjudicating authoritys order is correct and legal and does not suffer from any infirmity. Appeal rejected.
(Pronounced and dictated in open court) (M.V.Ravindran) Member (Judicial) Nr 5