Customs, Excise and Gold Tribunal - Calcutta
M/S. Dum Dum Metalloy Industries (P) ... vs Commissioner Of Central Excise , ... on 2 July, 2001
Equivalent citations: 2001(138)ELT1229(TRI-KOLKATA)
ORDER Mrs. Archana Wadhwa, Member (J)
1. Vide the impugned Order, the authorities below have confirmed the demand of duty of Rs. 15,435.00 (Rupees fifteen thousand for hundred thirty-five) on the ground that during the period from 22.7.93 to 2.112.93, the benefit of exemption Notification No. 1/93 was not available to copper alloy articles falling under sub-heading 7403.29. Penalty of an equivalent amount has been imposed under the provisions of Section 11AC of the Central Excise Act, 1944.
2. Shri P.R. Biswas learned Consultant for the appellants doe not dispute the legal position as regards the availability of Notification No. 1/93 and fairly admits that since the said goods were not specified under Notification No. 1/93, the benefit has been rightly denied by the authorities below. However, he submits that the demand of duty for the period from 22.7.93 to 2.12.893 was raised on 9.6.97 and s such, was barred by limitation. He submits that there was no intention on the part of the appellants to evade payment of duty inasmuch as they had declared the said product in their Classification List filed for the relevant period, which stands approved by the proper officer. In these circumstances, argues the learned Consultant, the extended period of limitation was not available to the Revenue.
3. He also submits that the imposition of personal penalty to the extent of 100% under the provisions of Section 11AC was neither justified nor warranted inasmuch as the said provisions was not in existence during the period to which the alleged short payment relates.
4. Shri A.K. Chattopadhyay, learned J.D.R. for the Revenue submits that the appellants do not have a case on limitation inasmuch as in their Classification List, they declared the said product attracting full rate of duty of 15% without mentioning the Notification in question, whereas in fact, they cleared their goods after availing the concessional ate of duty in terms of Notification No. 1/93. This conduct of the appellants amounts to misstatement and suppression with an intent to evade payment.
5. As regards the personal penalty, he submits that the show cause notice also proposed imposition of penalty under the provision of Rule 173Q of the Central Excise Rules, 1944. As such, mentioning of Section 11AC in the Order will not vitiate the same.
5. After considering the submissions made from both sides, we find that the appellants have not disputed that the copper alloy articles were not specified articles under Notification No. 1/93. As regards limitation, we find on perusal of the Classification List that the appellants have declared their products attracting basic duty @ 15% adv. There is no mention of Notification No. 1/93 in the said Classification List. Neither the appellants disclosed their intention to avail the benefit of the said Notification. The Classification List so filed by the appellants was approved by the proper officer at 15% rate. In spite of that, the appellants cleared their gods on lower rate of duty in terms of Notification No. 1/93. As such, as rightly contended by the learned J.D.R., this is a clear case of misstatement. The appellants have availed the benefit of the Notification and cleared their goods at a concessional rate in contradistinction to their declaration made in their Classification List and the approval of the same by the proper officer. As such, we hold that the extended period of limitation has been rightly invoked by the authorities below.
6. As regards the personal penalty, we agree with the learned Advocate that the provisions of Section 11AC would not apply inasmuch as the differential duty relates to the period prior to introduction of the said Section. However, we also note that the show cause notice proposed imposition of penalty under Rule 173Q. Accordingly, we reduce the quantum of penalty from Rs. 15,435.00 (Rupees fifteen thousand four hundred thirty-five) to Rs. 5,000.00 (Rupees five thousand) only. But for the above modification in the quantum of penalty, the appeal is otherwise rejected.
7. At this stage, learned Consultant, Shri Biswas submits that they have already deposited an amount of Rs. 680.00 (Rupees six hundred eighty) towards the differential duty which should have been taken into account by the Additional Commissioner while confirming the total demand of differential duty of Rs. 15,435.00 (Rupee fifteen thousand four hundred thirty-five). We direct the Additional Commissioner to look into the said aspect and quantify the duty accordingly.
Pronounced in the open court.