Custom, Excise & Service Tax Tribunal
Dhanlaxmi Re-Rolling Mill vs Commissioner Of Central Excise, ... on 6 November, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. APPEAL No. E/1473/10-Mum (Arising out of Order-in-Appeal No. AGS(82)57/2010 dated 5.5.2010 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad) For approval and signature: Honble Mr. S.S. Garg, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Dhanlaxmi Re-Rolling Mill Appellant Vs. Commissioner of Central Excise, Aurangabad Respondent Appearance: None for appellant Shri V.K. Shastri, Assistant Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Garg, Member (Judicial) Date of Hearing: 14.10.2015 Date of Decision: 6.11.2015 ORDER NO
The present appeal is directed against order-in-appeal No. AGS(82)57/2010 dated 5.5.2010 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad, whereby the learned Commissioner (Appeals) upheld the decision of the adjudicating authority but reduced the redemption fine. Against the imposition of redemption fine, the appellant is before this Tribunal.
2. Briefly the facts of the case are that the appellant is a manufacturer of MS TMT bars falling under Chapter 72 of the First Schedule of the Central Excise Tariff Act, 1985. A show cause notice was issued to the appellant calling upon to show cause as to why central excise duty of Rs.1,19,676/- should not be demanded under Section 11A(1) of the Central Excise Act on the goods cleared by the appellant and duty amount of Rs.1,19,676/- already paid by the appellant should not be appropriated against the aforesaid demand, and also 20.645 MT of MS TMT bars and the truck should not be confiscated under the provisions of Rule 25 and penalty should not be imposed under Section 11AC read with Rule 25 of the Central Excise Rules, 2002.
2.1 The appellant deposited the entire duty demanded in the show cause notice with 25% penalty within 30 days of the receipt of the show cause notice as per the provisions of Section 11A(1A) of the Act and requested the authorities to conclude the proceedings against the appellant as per proviso to Section 11A(2) read with Section 11A(1A) of the Act, but the adjudicating authority confiscated the goods with an option to redeem the same on payment of redemption fine of Rs.1,40,000/- and also ordered confiscation of truck with an option to redeem the same on payment of redemption fine of Rs.1,15,000/-. On appeal filed by the appellant, the learned Commissioner (Appeals) confirmed the demand and confiscation. Aggrieved by this order, the appellant has filed the present appeal.
3. None appeared for the appellant. They have filed written submissions requesting for decision on merits. It is submitted that the order passed by both the authorities below is not sustainable, tenable and passed against the appellant without considering the mandate of law as provided in Section 11A(1A) of the Act. It is further submitted that the Commissioner (Appeals) has not considered the submissions made by the appellant with regard to the conclusion of proceedings under Section 11A(2) of the Act. It is further submitted that as per Section 11A(1A) of the Act, it is provided that once the duty along with interest and penalty is deposited within 30 days, then all proceedings against the appellant get concluded.
4. On the other hand, the learned AR tried to defend the decision of the adjudicating authority and submitted that the redemption fine imposed on the appellant is under Rule 25 of the Central Excise Rules and the same can be legally imposed on the appellant and the same is not covered by Section 11A(1A) and 11A(2) of the Act.
5. Heard the learned AR and perused the records and also the written submissions filed by the appellant. The only question to be considered in this appeal is whether on depositing the entire duty, interest and 25% of the penalty within 30 days of the show cause notice, all the proceedings against the appellant get concluded or not. As per the learned counsel for the appellant, it is mandate of law as provided in Section 11A(1A) and 11A(2) which are reproduced herein below:-
"SECTION 11 A- Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded-
(1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made there under, a Central Excise Officer may, within [one year] from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of Act or of the rules made there under with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, for the words [one year], the words "five years" were substituted:
(1A) When any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or the rules made there under with intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to sub-section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 11AB and penalty equal to twenty-five per cent of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice.
(2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined.
Provided that if such person has paid the duty in full together with, interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice are served under sub-section (1) shall, without prejudice to the provisions of section 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein :
Provided further that, if such person has paid duty in part, interest and penalty under subsection (1A), the Central Excise Officers, shall determine the amount of duty or interest not being in excess of the amount partly due from such person. 5.1 It is further submitted by the appellant that in this case, the show cause notice was issued under Section 11A(1) of the Central Excise Act, 1944 only and the duty is also recovered under this provision only. It is also submitted that for imposition of fine and penalty, notice is also issued under Section 11A(1) alone. On going through the above provision, I am of the considered opinion that once the appellant has deposited the entire duty along with 25% of the penalty amount within 30 days of the issuance of show cause notice, the entire proceedings against the appellant stand concluded. In this case there is no dispute with regard to deposit of duty and penalty within the stipulated period. In this view of the matter, the redemption fine imposed on the appellant is totally unwarranted and in contravention of the provisions as contained in Section 11A(2). Therefore, I set aside the redemption fine and allow the appeal with consequential relief, if any.
(Pronounced in Court on 6.11.2015) (S.S. Garg) Member (Judicial) tvu 1 6