Custom, Excise & Service Tax Tribunal
Cce, Ghaziabad vs M/S. Hindon Forge (P) Ltd on 12 April, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No. 2, R.K. Puram, NEW DELHI CENTRAL EXCISE APPEAL NO. 1297 OF 2008-SM [Arising out of Order-in-Appeal No. 65/CE/GZB/08 dated 29.2.2008 passed by the Commissioner (Appeals), Central Excise, Ghaziabad] Dated of hearing/decision: 12th April, 2010 For approval and signature: Honble Mr. S.K. Gaule, Member (Technical) 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 would 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? CCE, Ghaziabad Appellant Vs. M/s. Hindon Forge (P) Ltd., Respondents Appearance: Shri S.K. Bhaskar, Authorised Representative (SDR) for the Revenue; None for the respondents Coram: Honble Mr. S.K. Gaule, Member (Technical) ORAL ORDER NO._________________ dated __________
Per S.K. GAULE:
Heard both sides. Revenue is in appeal against Order-in-Appeal No. 65/CE/GZB/08 dated 29.2.2008 passed by the Commissioner (Appeals), Central Excise, Ghaziabad.
2. The respondents are engaged in the manufacture of Rough Forged Goods of iron and steel falling under sub-heading 7207.90 and 7307.00 respectively of first Schedule to the Central Excise Tariff Act, 1985. The respondents re-exported the rejected goods and they have paid CVD and Special Excise duty (SED). They took credit of both the duties whereas they were entitled to avail Cenvat credit of CVD only and not SED. The lower adjudicating authority confirmed the demand of Rs. 5,40,625/- pertaining to Special Excise duty, Rs. 1,86,958/-, Rs. 98,000/-, Rs. 4688/, Rs. 9878/-, and Rs. 1,15,851/- and imposed penalty of equal amount. The respondents filed appeal against order-in-original passed by the lower authority. The Commissioner (Appeals) upheld the order-in-original so far it is concerned with the confirmation of demand. The respondents have paid the demand before issue of show cause notice and, hence, in terms of Section 11A(2)(b) penalty is not imposable on such amounts. However, he reduced the penalty on the ground that in terms of Section 11A(2)(b) of Central Excise Act, 1944 penalty is not imposable on such amount.
3. The contention of the appellants is that explanation (1) of Section 11A(2)(b) ibid reads as under:-
Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty. The contention is that Learned Commissioner (Appeals) has also held in the impugned order extended period is rightly invoked.
4. I find that there is a concurrent finding of both the lower adjudicating authorities regarding confirmation of demand. The total demand of duty was confirmed and equal amount of penalty was imposed by the lower adjudicating authority. The departure is regarding imposition of penalty. The adjudicating authority has imposed equal amount of penalty equal to the demand confirmed. The Commissioner (Appeals) has reduced the penalty on the ground that the respondents have deposited the amount before issue of show cause notice and, hence, in terms of Section 11A(2)(b) (ibid) is not imposable on such amount and, accordingly reduced the penalty to Rs. 5,40,625/-. I find that both the lower authorities have also given concurrent finding that 5 years period is rightly invoked in this case. Honble Supreme Court in the case of UOI vs. Rajasthan Spinning & Weaving Mills, reported in 2009 (238) ELT 3 (S.C.) held that the authorities have no discretion to impose lower penalty. Said decision of the Honble Supreme Court was not before the Commissioner (Appeals) when the appeal was decided by him. Therefore, this case is required to be reconsidered in the light of the Honble Supreme Courts decision in the case of Rajasthan Spg. & Wvg. Mills (supra). Therefore, the matter is remanded to the learned Commissioner (Appeals) for deciding this case on limited aspect of deciding the quantum of penalty in view of the decision Honble Supreme Court after affording opportunity of hearing to the respondents. Appeal is disposed of by way of remand.
(S.K. GAULE) TECHNICAL MEMBER RK ??
??
??
??
3