Custom, Excise & Service Tax Tribunal
Cce, Raipur vs M/S. Abir Steel Roling Mills on 4 December, 2012
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066 COURT NO. II Central Excise Appeal No. 2003 to 2005/2010-SM [Arising out of Order-in-Appeal No. 122/RPR-I/2010 dated 31.3.2010 passed by the Commissioner (Appeals-I), Central Excise, Raipur] Date of Hearing/decision: 4th December, 2012 CCE, Raipur Appellant Vs. M/s. Abir Steel Roling Mills, Shri Harikrishna Madanlal Agarwarl, Shri Deepak Agrawal, M.D. Respondent
Present for the Assessee : Shri R.K. Mathur, D.R. Present for the Respondent : None Coram: Honble Shri D.N. Panda, Judicial Member FINAL ORDER NO. ________________ Per D.N. Panda:
On perusal of adjudication and appellate order it appears that both the orders have totally overlooked the intention of show cause notice dated 12.1.2009. Paragraph 5 & 6 of show cause notice are reproduced as under for appreciation of the purpose thereof:-
Whereas the investigations in the case probe appear to indicate that Shri Deepak Gupta, S/o Shri Ram Dular Gupta, i.e. Noticee No. 2, Director, M/s. ASL, is the person who was directly concerned with the overall functioning of the said company and in particular, with regard to the discharge of their Central Excise obligation. Incrementally, it appears that he was instrumental in the suppression of the correct and germane facts thereof concerning the surreptitious manufacture of excisable goods in question and clandestine clearances thereof, with a mala-fide intention to evade the CE duty on the said goods. Consequently, it appears that he has concerned himself with the clandestine manufacturing, transporting, removing, depositing, keeping, concealing and selling the said excisable goods which he knew or had reason to believe were liable for confiscation under Rule 25 of the Central Excise Rules, 2002. Shri Deepak Gupta, S/o Shri Ram Dular Guypta, i.e. Noticee No. 2, Director of M/s. ASL is, therefore, required to show-cause, to the said Assistant/Deputy Commissioner, as to why penalty should not be imposed on him under the provisions of Rule 26 of the Central Excise Rules, 2002.
6. Whereas, it further appears that Shri Harikrishna Mandanlal Agarwal i.e. Noticee No. 3, Broker, dealing in the Iron & Steel products, was in contact with M/s. ASL and the customer i.e. M/s. ASRMPL (Noticee No. 4), in causing sale of M.S. Ingots manufactured by the former to M/s. ASRMPL, without payment of CE duty, and he and M/s. ASRMPLL, i.e. Noticee No. 4 have, thus, orchestrated and facilitated the entire clandestine transactions, transportation and payment for the same and were consequently, aware of and responsible for the above mentioned unlawful transactions and knowingly concerned themselves in transporting, removing, depositing, keeping, concealing, purchasing and selling the said goods which they knew or had reason to believe, were liable for confiscation under Rule 25 of the Central Excise Rules, 2002. Shri Harikrishna Madanlal Agarwal and M/s. ASRMPL, are, therefore, required to show-cause to the said Assistant/Deputy Commissioner, as to why penalty should not be imposed on each of them individually, under the provisions of Rule 26 of the Central Excise Rules, 2002. Reading of above paragraphs of show cause notice clearly brings out the contributory noticees to face penal consequence of law under Rule 26 of Central Excise Rules, 2002.
2. While learned Adjudicating Authority was of the view that from 13.7.2006 a proviso was introduced to grant immunity from penalty where the duty, interest and 25% of duty towards penalty is deposited prior to issuance of show cause notice, there was no blanket immunity granted by Section 11A of Central Excise Act, 1944. Dispute is intended to be settled by law under Sub-section (1A) suo motu by the assessee complying with the requirement of that sub-section or the assessee may make representation to determine the liability under Sub-section (2). Both the sub-sections are different from each other in their ambit and scope. It is not necessary that like Sub-section (1A) similar nature of power is exercised under Sub-section (2) of Section 11A.
3. The proviso to Sub-section (2) of Section 11A indicates the spirit of Sub-section (2) of section (1A) which is a different circumstance than the situation covered by Sub-section (1A). It appears that both the authorities below construed the provisions Sub-section (2) read with its proviso in erroneous manner defeating the spirit of law. In view of the above, notice is hereby issued to respondent No. 2, 3 & 4 before first appellate authority who are Shri Deepak Gupta, Shri Harikrishna Madanlal Agrawal and M/s. Abir Steel Rolling Mills Pvt. Ltd. to show cause as to why appropriate penalty should not be imposed on them as per show cause notice issued. They are required to reply to show cause notice to the Tribunal on or before 24th January, 2013 on which date the matter is fixed for hearing further. They may also represent either themselves or through their authorised representative to lead defence, if any, apart from written reply to above show cause notice.
4. Call the matter on 24th January, 2013.
(Dictated & pronounced in the Open Court) (D.N. PANDA) JUDICIAL MEMBER RK 5 E/2003 to 2005/2010-SM