Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Mumbai ... vs Paramount Silk Mills on 30 September, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal NoE/2695/01. (Arising out of Order-in-Appeal No. ZBN/293/M-V/2001 dated 8.6.2001 passed by Commissioner of Central Excise (Appeals), Mumbai Zone II.) For approval and signature: Honble Mr.Sahab Singh, Member (Technical) ======================================================
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 :Yes 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?
====================================================== Commissioner of Central Excise, Mumbai V Appellant (Represented by: Mr. Y.K. Agarwal, SDR) Vs Paramount Silk Mills Respondent (Represented by: Mr. S.P. Bharti, Advocate ) CORAM:
Honble Mr.Sahab Singh, Member (Technical) Date of Hearing : 28.09.2011 Date of Decision: 28.09.2011 ORDER NO..
Per: Sahab Singh
1. This is an appeal filed by Revenue against Order-in-Appeal No. ZBN/293/M-V/2001 dated 8.6.2001.
2. Facts in brief are that the assessee was working under the Compounded Levy Scheme and it was noticed by the Revenue that the assessee had delayed the payment of duty under Section 3A of the Central Excise Act during the period from December, 1998 to February 1999 inasmuch as they have paid the differential excise duty much after the due dates of such payment. Since they have not paid the amount within the due date, Show Cause Notice was issued to them which was confirmed by the Deputy Commissioner of Central Excise vide his Order No. CEX/GD/257/2000 dated 21.7.2000. Being aggrieved by the said order, the appellants preferred appeal before the Commissioner (Appeals) and the Commissioner (Appeals) set aside the Order-in-Original passed by the original authority stating that the assessee was not guilty of willful disregard of law and the benefit of doubt was given to the appellant as no case has been made out to hold the declaration made by the appellant amounted to wilful suppression of facts. The Commissioner of Central Excise, Mumbai V has challenged the impugned order before this Tribunal in this appeal.
3. The learned SDR appearing on behalf of the Revenue submitted that under sub-rule 5 (ii) of Rule 96ZQ it has been provided that there will be mandatory penalty imposable on the assessee if there is a delay in payment of duty. Once the ingredients of the Rule 96ZQ are made, the appellate authority has no discretion to reduce the penalty or raise the penalty which has been done in the present case by the Commissioner (Appeals). Therefore, he has contended that the Commissioner (Appeals) has traversed beyond the powers vested in under the law. He therefore, requested that Order-in-Appeal passed by the lower appellate authority be set aside.
4. The learned advocate appearing on behalf of the respondent submitted that they have made payment of duty as per the order fixed by the Commissioner. He submitted that the duty has been paid by them on 31st December, 1998 by Challan No. 105 and 106 amounting to Rs 3 lakhs and Rs 1.20 lakhs. Under Challan No. 108 dated 5.1.99 duty amounting to Rs 6 lakhs has been paid and under Challan No. 110 dated 15.1.99 duty amounting to Rs 4.20 lakhs has been paid, while under Challan No. 114 dated 12.2.99 duty of Rs 6 lakhs has been paid. He therefore, submitted that there is no delay in payment of the duty as per the provisions, duty is to be paid twice in a month once before 15th of the month and second time before the last date of the month. He therefore, prayed that the appeal filed by the Revenue be dismissed.
5. After hearing both sides, and going through the case papers, I find that Order-in-Original passed by the original authority has given his finding based on the following three challans:
(i) No. 105 31.12.98 for Rs 3 lakhs;
(ii) No. 108 dated 05.1.99 for Rs 6 lakhs
(iii) No. 114 dated 12.2.99 for Rs 6 lakhs
6. I find the two challans No. 106 dated 31.12.98 and No. 110 dated 15.1.99 has not been considered by the original authority while computing the duty amount paid by the assessee. Therefore, I remand the matter back to the original authority to decide the issue afresh in accordance with law after affording a reasonable opportunity to the appellant of being heard and after considering all the above five challans under which duty was paid by the respondents.
7. The appeal is allowed by way of remand. Since the matter pertains to period 1998-99, the original authority should pass order within three months from the date of receipt of a certified copy of this order.
(Pronounced in Court.) (Sahab Singh) Member (Technical) rk 2