Custom, Excise & Service Tax Tribunal
Commr. Of C. Excise, Kolkata-Iv vs M/S. Kusum Products Ltd on 10 February, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Excise Appeal No.- 410/09
(Arising out of the Order in Original No. 17/Commissioner/CE/Kol-IV/Adjn./2005 dated- 30.3.2005 passed by the Commissioner of Central Excise Kolkata-IV read with CESTAT order No. M-180/KOL/2011 dt. 13.09.2011)
For approval and signature :
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
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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 authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
Commr. of C. Excise, Kolkata-IV
APPELLANT(S)
M/s. Kusum Products Ltd.
RESPONDENT(S)
APPEARANCE
Sri S. Misra, Addl. Commr.(A.R.)
FOR APPELLANTS
Sri N.K. Chowdhury, Advocate
FOR THE RESPONDENTS
CORAM:
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
Date of Hearing & Decision : 10/02/2012
ORDER NO.==========================================
Heard both sides.
2.1 From the conjoint reading of the provisions of Rule 25 (1) of Central Excise Rules 2002 and Section 11AC of CEA, 1944 reproduced in para 6 of order proposed by Member (J), it follows that provision of Rule 25(1) are subject to Section 11AC, which means that provisions of Section 11 AC prevail over Provisions of Rule 25 (1). A mandatory penalty equal to the duty (neither more nor less) , short paid or not paid or erroneously refunded is payable if such non payment or short payment or erroneous refund was due to fraud, collusion, willful misstatement or suppression of facts etc. under section 11AC. Rule 25 (1) does not envisage mandatory penalty equal to duty, the rule only provides penalty upto duty payable on such contravening goods or Rs.2,000/- whichever is higher. However, from the above it does not follow that Provisions of Rule 25 (1) would not apply in case the ingredients of fraud, willful misstatement or suppression etc. are not present. Otherwise the provisions of Rule 25 (1) would be rendered otiose, 2.2 Undisputedly the proposal in the show cause notice was for imposition of penalty for contravention of Rule 4 and Rule 8 ibid, under Section 11AC read with Rule 25 (1) ibid Ld. Commr. in para (v) of para 2.9 of the impugned order, has found that .Regarding the question of imposition of penalty, there is no suppresion of facts before the Department of Willful mis-statement or fraud or evasion of duty. In the overall facts and circumstances of the case including the complexity of the issues involved, I come to the conclusion that this is not a case where the penal provisions can be upheld or that where the penalty can be imposed. Therefore, I refrain from imposing penalty in the instant case. In this regard the Ld. advocate appearing for the appellant contended that there is no challenge to the above findings of Ld. Commr. (Appeal) in the grounds of appeal filed by the Department. Para 5 and para 15 of order proposed by Ld. Member (J) and Ld. Member (T) respectively also supports the view of the Ld. Advocate. It is pertinent to mention here that the provisions of Section 11AC are para-materia to the provisions of Rule 25 (1) (d) so far as the contravention of any of the Provisions of Rules with intent to evade payment of duty is concerned. In view of the above, I find that penalty is not imposable under Rule 25 ibid, considering the facts and circumstances of the instant case. Thus I agree with the Member (J) to that extent, alone.
3. The reference stands disposed off as above.
(Dictated and pronounced in the open Court) Registry is directed to place the matter before Honble President, CESTAT, New Delhi for necessary orders.
(Pronounced on 22/02/2012) (S.K. GAULE) TECHNICAL MEMBER K.B/-
Excise Appeal No.- 410/09 3