Custom, Excise & Service Tax Tribunal
M/S. Super Plastronics Pvt.Ltd., ... vs Commissioner Of Central Excise, Noida on 13 February, 2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
E/904/2011, E/905/2011, E/906/2011 (DB)
(Arising out of Order-in-Original No.22/Commr/Noida/2010-11 dated 31.12.2010 passed by Commissioner of Central Excise, Noida.)
M/s. Super Plastronics Pvt.Ltd., Amarjeet Singh, Managing Director of,, Jag Mohan Singh, Manager (Imports) of,
APPELLANT(S)
VERSUS
Commissioner of Central Excise, NOIDA
RESPONDENT (S)
APPEARANCE Shri Atul Gupta (Advocate) & Shri Hrishikesh (Advocate) for the Appellant (s) Shri Pawan Kumar Singh(Supdt.)(A.R.) for the Revenue CORAM:
SHRI ANIL CHOUDHARY, HONBLE(JUDICIAL) SHRI ANIL G. SHAKKARWAR, MEMBER(TECHNICAL) DATE OF HEARING/DATE OF DECISION : 13.02.2018 FINAL ORDER NO.70548-70550/2018 Per Shri ANIL G. SHAKKARWAR :
Above stated appeals are directed against Order-in-Original No.22/Commr/Noida/2010-11 dated 31.12.2010 passed by Commissioner of Central Excise, Noida. Since all the three above stated appeals are arising out of a common order, they are taken together for decision.
2. Brief facts of the case are that appellant were engaged in the manufacture of colour and black & white TV and VCD players.
3. on 23.11.2005 officers of Central Excise visited the factory premises and resumed some note pads. The officers also conducted stock taking of the inputs. They further recorded statements of Shri Chaman lal, Manager, Shri Amarjit Singh, Managing Director, Shri Ashok Thakur, Manager Accounts, M/s.B.G. Infotech Pvt.Ltd., Shri Ganoj Gaur, Partner of M/s.DGS and Shri Jagmohan Singh. On the basis of investigation related to said Note pads and statements of above stated persons a show cause notice dated 13.04.2009 was issued. Para 15 and para 30 of said show cause notice are reproduced below for ready reference.
15. And whereas, during search of factory premises of SPPL certain note pads containing certain entries were recovered and resumed by the officers on 23.11.2005. The name of Shri Jagmohan Singh was written on the cover of four note pads. A detailed scrutiny of these resumed records was under taken and co-related with the Central Excise invoices issued by the party. It was observed that the entries mentioned in the four note pads are matching with the removals of finished excisable goods/cenvatable inputs removed under cover of Central Excise invoices. Thus, it appears that these resumed note pads contains the authentic records of dispatches made by the party from their factory premises. As such, all the entries mentioned in the four note pads were co-related/tallied with the Central Excise invoices issued by the party. It was observed that in some cases there is no corresponding central excise invoice covering dispatches as shown in these resumed private note pads.
30. Now therefore, M/s Super Plastronics Pvt. Limited, B-30 & 31, Sector-81, Phase-II, Noida are hereby required to show cause to the Commissioner, Central Excise, Noida having office at C-56/42, Sector-62, Noida, as to why:
(i) Central Excise duty amounting to Rs.3,18,840/- (BED Rs.3,12,588/- + Cess Rs.6,252/-) involved on the shortage of 11.425 M.T. of plastic dana should not be demanded and recovered from them under proviso to Section-11A read with Rule-14 of the Cenvat Credit Rules, 2004 and why the Central Excise duty amounting to Rs.3,18,840/- already deposited by them voluntarily should not be appropriated towards the aforesaid demand.
(ii) Central excise duty amounting to Rs.72,420/- (BED Rs.71,000/- + Cess Rs.1420/-) on account of inadmissible Cenvat credit availed by them on damaged CPTs should not be demanded and recovered from them under proviso to Section-11A of the Central Excise Act, 1944 read with Rule-14 of the Cenvat credit Rules, 2004 along with interest under Secion-11AB of the Central Excise Act, 1944 and why the Central Excise duty amounting to Rs.72,420/- already deposited by them voluntarily should not be appropriated towards the aforesaid demand.
(iii) Central excise duty (including Ed. Cess) amounting to Rs.35,088/- involved on account of removal of cenvatable inputs for replacement under cover of private challans should not be demanded and recovered from them under proviso to Section-11A of the Central Excise Act, 1944 read with Rule-14 of the Cenvat Credit Rules, 2004 along with interest under Section-11AB of the Central Excise Act, 1994 and why the Central Excise duty amounting to Rs.35,088/- and interest amounting to Rs.8,117/- already deposited by them voluntarily should not be appropriated towards the aforesaid demand.
(iv) Central Excise duty amounting to Rs.80,33,624/- (BED-Rs.78,76,102/- + Cess Rs.1,57,522/-) involved on clearances of excisable goods removed without payment of central excise duty (refer Annexure-II and Annexure-III of this notice) during the period April, 2004 to November, 2005 should not be demanded and recovered from them under proviso to Section-11A of the Central Excise Act, 1944 read with Rule-14 of the Cenvat credit Rules,2004 along with interest under Section-11AB of the Central Excise Act, 1944.
(v) Penalty should not be imposed upon them under Section-11AC of the Central Excise Act, 1944 read with Rule-25 of Central Excise Rules, 2002 for contraventions as discussed in the preceding para. The said show cause notice was contested. The original adjudicating authority adjudicated the said show cause notice through the impugned order dated 31.12.2010. The order passed is reproduced below:
(i) The demand of Central Excise duty amounting to Rs.3,18,840/- (BED Rs.3,12,588/- + Cess Rs.6,252/-) involved on the shortage of 11.425 M.T. of Polycorbonate (Plastic Granules) is confirmed under proviso to Section-11A of Central Excise Act, 1944 read with Rule-14 of the Cenvat Credit Rules, 2004. Since the Central Excise Duty amounting to Rs.3,18,840/- has already been deposited by the party, the same is ordered to be appropriated towards the aforesaid demand.
(ii) The demand of Central Excise Duty amounting to Rs.72,420/- (BED Rs.71,000/- + Cess Rs.1,420/-) on account of inadmissible Cenvat credit availed by them on damaged CPTs is confirmed under proviso to Section-11A of the Central Excise Act, 1944 read with Rule-14 of the Cenvat Credit Rules, 2004. Since the Central Excise Duty amounting to Rs.72,420/- already deposited by the party, the same is ordered to be appropriated towards the aforesaid demand. Further, M/s Super Plastronics Pvt. Limited, B-30 & 31, Sector-81, Phase-II, Noida are directed to pay the interest accrued on Rs.72,420/- forthwith under Section 11AB of the Central Excise Act, 1944.
(iii) The demand of Central Excise Duty (including Ed. Cess) amounting to Rs.35,088/- involved on account of removal of cenvatable inputs for replacement under cover of private challans is confirmed under proviso to Section-11A of the Central Excise Act, 1944 read with Rule-14 of the Cenvat Credit Rules, 2004 along with interest under Section-11AB of the Central Excise Act, 1944. Since the Central Excise Duty amounting to Rs.35,088/- along with interest amounting to Rs.8,117/- already deposited by the party, the same is appropriated.
(iv) The demand of Central Excise Duty amounting to Rs.80,33,624/- (BED-Rs.78,76,102/- + Cess Rs.1,57,522/-) involved on clearances of excisable goods removed without payment of Central Excise Duty during the period April 2004 to November 2005 is confirmed under proviso to Section-11A of the Central Excise Act, 1944 read with Rule-14 of the Cenvat Credit Rules, 2004 along with interest under Section-11AB of the Central Excise Act, 1944.
(v) I impose a penalty of Rs.84,59,972/- upon M/s Super Plastronics Pvt. Limited, B-30 & 31, Phase-II, Noida under the provisions of Rule 25 of Central Excise Rules, 2002 read with Section-11AC of the Central Excise Act, 1944 for contravention of the provisions of Rules mentioned here-in-above.
(vi) I impose a penalty of Rs.2,00,000/- (Rupees Two Lacs) only on Shri Amarjeet Singh, MD of M/s Super Plastronics Pvt. Limited, B-30 & 31 Sector-81, Phase-II, Noida under Rule 26 of the Central Excise Rules, 2002 for his personal involvement in evasion of Central Excise Duty and contravention of the provisions of Rules discussed here-in-above.
(vii) I impose a penalty of Rs.60,000/- ( Rupees Sixty Thousands) only on Shri Jag Mohan Singh, Manager (Import) of M/s Super Plastronics Pvt. Limited, B-30 & 31, Sector-81, Phase-II, Noida under Rule 26 of the Central Excise Rules, 2002 for his personal involvement in evasion of Central Excise Duty and contravention of the provisions of Rules discussed here-in-above.
4. Aggrieved by the said order appellant is before this Tribunal.
5. Appellants submitted that the said note pads recovered on 23.11.2005 were only the record in which orders received were noted and subsequently when the goods were dispatched the same were cleared on issue of Central Excise invoice and on payment of appropriate Central Excise duty. He has further submitted that there are no allegations of receipt of any inputs not recorded in the books of account of the appellant out of which the alleged clandestinely manufactured goods were manufactured. He has further submitted that the 3 invoices bearing invoice no.1665 dated 11.10.2005, 761 dated 20.06.2005 and invoice no.1431 dated 12.4.2005 in respect of which there were allegations that duplicate sets of invoices were issued only one copy of authentic invoice No.1665 bearing signature was available and the other copy which revenue has alleged did not bear any signature nor any value was mentioned in the same and it was only a proforma of the invoice and it was not invoice as such. Further in respect of invoice 761 he has mentioned that there was only 1 such invoice and the other one which became subject matter of allegation was only Photostat copy of original and in respect of invoice 1431 he has stated that the said invoice was issued for captive consumption and only one invoice was signed and the other copy which became subject matter of allegation by revenue was unsigned copy. He has submitted that the allegations in the show cause notice are not proved and therefore the impugned order-in-original deserves to be set aside.
6. Heard the ld.AR who has supported the impugned order-in-original.
7. Having considered the rival contentions and on perusal of records we find from para 30 of show cause notice stated above that the amounts such as Rs.318840, Rs.72,420 and Rs.35,088 were the amounts which were paid along with interest before issues of show cause notices therefore under the provisions of sub section 2B of section 11A of central excise act, 1944 show cause notice was not authorized to be issued. Further in respect of the allegation of clandestine removal the above reproduced para 15 is relevant where in one sentence revenue states that as such all entries mentioned in the four note pads were correlated and tallied with central excise invoices issued by the appellant and in next sentence revenue mentioned that it was observed that there is no corresponding central excise invoice covering despatches as shown in the said reseumed private note pads. The said two contentions are contradictory to each other which gives an impression that there was total confusion in the minds of people who have issued show cause notice. Therefore, such show cause notice which is unclear and confusing is not sustainable in law. We therefore set aside the impugned order-in-original and allow the appeal without interfering into the amounts paid such as Rs.3,18,840, Rs.72420 and Rs.35,088 alongwith interest thereon. The appellants shall be entitled for consequential relief as per law. Further since the allegations of clandestine removal are not established penalty imposed on Amarjeet Singh and Shri Mohan Singh are also set aside. The impugned order-in-original is set aside to the above extent and all the appeals are allowed.
(Dictated and pronounced in the court.) SD/ SD/ (ANIL CHOUDHARY) (ANIL G. SHAKKARWAR) MEMBER (JUDICIAL) MEMBER(TECHNICAL) sm 7 E/904/2011, E/905/2011, E/906/2011