Custom, Excise & Service Tax Tribunal
Cce, Kanpur vs M/S Keymen Laminators (P) Ltd on 31 March, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
COURT NO. II
Excise Appeal No. 1168 of 2008-SM
(Arising out of Order-in-Appeal No. 8-CE/APPL/KNP/2008 dated 28.1.2008 passed by the Commissioner (Appeals), Customs & Central Excise, Kanpur)
CCE, Kanpur Appellant
Vs.
M/s Keymen Laminators (P) Ltd. Respondent
Date of Hearing: 31.3.2010 Appearance :
Appeared for Appellant - Shri I. Baig, DR
Appeared for Respondent - None
CORAM: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER
Order No.dated.
Per D.N. Panda:
None present for the Respondent.
2. Ld. DR Shri Baig assists for disposal of the matter. Appeal was filed in this case on 17.4.2008. That is nearly two years old. Keeping the matter pending is not considered proper in view of no dispute to the duty liability in absence of any appeal by the Respondent. Therefore the matter has been taken up for hearing today to dispose the same to serve the interest of justice. Ld. Commissioner (Appeals) has found that there was detection of shortage of the goods on the date of investigation. Also he has recorded that the Respondent has not challenged duty element but only pleaded waiver of penalty before him. He noticed that in absence of any corroborative evidence for the shortage of the stock penalty cannot be imposed.
3. Shri Baig, Ld. DR submits that once the duty element is not disputed by the Respondent, there is no question of any immunity to be granted in respect of penalty. The element of proviso to Section 11A(1) of Central Excise Act, 1944 are present in this case by the very conduct of shortage noticed. The shortage is not explained. Therefore penalty is imposable. However, he is able to find that the duty was paid within 15 days of the investigation.
4. Heard ld. DR and also perused the record. There is no dispute that the duty became payable even by the order of the first appellate authority. But the reasoning given for waiver of penalty is not appealable reason. The detection of shortage itself established the manner of causing loss of Revenue. Once such a factual aspect comes out from record the respondent does not deserve any immunity from penalty. However, considering the ratio laid down by the Honble High Court of Delhi in the case of K.P. Pouches (P) Ltd. Vs. Union of India reported in 2008 (228) ELT 31 (Del.), Ld. Adjudicating authority shall do well to examine whether the Respondent is entitled to the concession of penalty to the extent of 25% of the duty amount, subject to verification of the challan showing deposit of the excise duty if any made and pass appropriate order to grant concession under provision of concession in Section 11AC of Central Excise Act, 1944.
5. The Respondent shall get proper opportunity of hearing before the ld. Adjudicating Authority while disposing the remand proceeding.
6. In the result, the matter is remanded to the ld. Adjudicating authority.
(Dictated & pronounced in open Court) (D.N. PANDA) JUDICIAL MEMBER RM