Custom, Excise & Service Tax Tribunal
Cce, Chandigarh vs M/S. Mohindra Iron & Steel Industries on 5 June, 2013
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:5.6.2013
Hon'ble Mr. Rakesh Kumar, Member (Technical)
1. Whether Press Reporters may be allowed to see the :
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rule, 1982?
2. Whether it would be released under Rule 27 of :
the CESTAT (procedure) Rule, 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 Department
Authorities? :
Appeal No.E/776/2010-EX(SM)
(Arising out of Order-in-Appeal No.30/CE/CHD/2010 dated 8.2.2010 passed by the Commissioner of Central Excise (Appeals), Chandigarh).
CCE, Chandigarh Appellant
Vs.
M/s. Mohindra Iron & Steel Industries Respondent
Appearance:
none for the appellant.
Shri R.K. Mathur, DR for the respondent.
Coram: Honble Shri Rakesh Kumar, Member (Technical) Final Order No.56860 /2013 Per Rakesh Kumar:
The respondents are a rolling mill falling under Compounded Levy Scheme of Rule 96 ZP. The period of dispute is from September, 1997 to March, 2000 and in respect of this period, their monthly duty liability had been determined by the Commissioner as Rs.5,000/- which was required to be paid by stipulated date. During each month of the dispute, though the respondent discharged the monthly duty liability as determined by the department, but there was delay in payment of duty. During the period of dispute, the Rule 96 ZP (3) prescribed a penalty equal to the amount of duty is payable in case duty is not paid by the due date and on this basis, the respondent would become liable for penalty for failure to discharge duty liability by the due date. The department initiated proceedings for imposition of penalty by issue of show cause notice on 14.5.2004 and under this show cause notice, penalty was sought to be imposed on the respondent in respect of each month during March, 98 to Feb. 2000 for delay in discharge of monthly duty liability. The show cause notice was adjudicated by the Dy. Commissioner vide order-in-original dated 26.2.2009 by which he imposed a penalty of Rs.5,000/- for each month since there was total penalty of Rs.1,15,000/- under Rule 96 ZP(3). The respondent filed an appeal to the Commissioner (Appeals) and the Commissioner (Appeals) vide order-in-appeal dated 8.2.2010 relying upon the judgement of the Honble Punjab & Haryana High Court in the case of CCE, Chandigarh Vs. Hari Concast Ltd. Reported in 2009 (242) ELT 12 (P&H) set aside the penalty as in this judgement. Honble Punjab & Haryana High Court had held that though Rule 96 ZP (3) does not prescribe any period for initiating the proceedings for imposition of penalty for failure to pay the duty by the due date, the proceedings are to be initiated within 5 years and not later. Against this order of the Commissioner (Appeals), the Revenue is in appeal. The Revenues appeal is mainly based on the judgement of the Tribunal in the case of Bhawani Castings Pvt. Ltd. Reported (Final Order No.738/2009-E dated 12.08.2009), wherein it had been held by the Tribunal that under Rule 96 ZO(3), there is no time limit for initiating that the same can be initiated even after 5 years.
2. None appeared for the respondent though the records indicate that notice for hearing had been issued. Therefore insofar as the respondents are concerned, the matter is being decided ex parte.
3. Shri R.K. Mathur, ld. Departmental Representative, impugned order reiterating the grounds of appeal and emphasized that since in Rule 96ZO(3), there is no time limit for initiating penal proceedings, the impugned order setting aside the penalty in respect of period from April to May, 1999 is not sustainable.
4. I have considered the submissions of ld. Departmental Representative and have gone through the records of this case. The only dispute in this case is as to whether the penal proceedings under Rule 96 ZO(3) can be initiated after expiry of 5 years. On this point, I find that Honble Punjab & Haryana High Court in the case of Hari Concast reported in 2009 (244) ElT 12 (P&H) had held that with regard to similar provisions of Rule 96 ZO(3), held that though in the Rule, there is no period of limitation, it would be reasonable to adopt limitation period of five years and as such, after expiry of 5 years, no penal proceedings can be initiated. Though Tribunal in the case of Bhawani Castings Pvt. Ltd. (supra) had taken a contrary view, on appeal being filed before Honble Punjab & Haryana High Court, reversed The Tribunal judgment vide judgment reported in 2010 (254) ELT 247 (P&H), wherein Honble Punjab & Haryana High Court has followed its earlier judgment in Hari Concast Pvt. Ltd. (supra) and has held that penal proceedings under Rule 96 ZO(3) cannot be initiated after expiry of 5 years. In view of this position, I do not find any merit in the Revenues appeal. The same is dismissed.
( Rakesh Kumar ) Member (Technical) Ckp.
1