Custom, Excise & Service Tax Tribunal
(I) Sri Kanaka Durga Castings (P) Ltd vs The Commissioner Of Central Excise, ... on 8 March, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
COURT - I
Appeal No: E/Stay/1028 & 1029/2010 in E/1748 & 1749/2010
(Arising out of Order-in-Appeal No: 6/2010 (V-II) CE & Order-in-Appeal No: 7/2010 (V-II) CE both dated 21.5.2010 passed by the Commissioner of Central Excise, Visakhapatnam.)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
(i) Sri Kanaka Durga Castings (P) Ltd.
(ii) Shri K. Ramesh
Appellant
Vs.
The Commissioner of Central Excise, Service Tax and Customs (Appeals)
Visakhapatnam - II Commissionerate
Visakhapatnam.
Respondent
Appearance
Shri B. V. Kumar, Advocate for the appellants.
Mrs. Sudha Koka, SDR for the revenue.
CORAM
SHRI M. V. RAVINDRAN, HONBLE MEMBER (JUDICIAL)
SHRI P. KARTHIKEYAN, HONBLE MEMBER (TECHNICAL)
Date of Hearing: 08.03.2011
Date of decision: 08.03.2011
STAY ORDER Nos._______________________2011
FINAL ORDER Nos._______________________2011
Per Shri M. V. Ravindran (Oral)
These stay petitions are filed for pre-deposit of the following amounts.
(i) Demand of Cenvat Credit of Rs.37,65,678/- along with interest
(ii) Equal penalty under Section 11AC
(iii) Personal penalty of Rs.5,00,000/- on Shri K. Ramesh.
2. Heard both sides and perused the records.
3. On perusal of the records, we find that at this stage we can dispose of the appeals itself, hence after allowing the applications for pre-deposit of the amounts involved. We take up the appeals itself for disposal.
4. On perusal of the records, we find that this is the second round of litigation. In the first round of litigation, we had remanded the matter back to the Adjudicating Authority to reconsider the issue on various evidences which were produced by the appellants before us. On such remand proceedings, the Adjudicating Authority has again confirmed the demand. On an appeal, the learned Commissioner (A) has also upheld the said order.
5. The learned counsel drew our attention to the order of the learned Commissioner (A) and submits that the appellant had before him led detailed evidences challenging the findings of the Adjudicating Authority. It is his submission that learned Commissioner (A) has not given any findings on the said evidences which were produced before him. He would also submit that the said findings are recorded in paragraph 6. He would submit that as against the demand of Rs.37.65 lakhs, the appellants have already deposited Rs.27.50 lakh which is with the revenue.
6. The learned SDR submits that the findings which were recorded by the learned Commissioner (A) are insufficient and both sides agree that the matter may be remanded back to the learned Commissioner (A). Further, the learned SDR would submit that the assessee should be directed to deposit the entire amounts confirmed and upheld by the Commissioner (A).
7. On a careful consideration of the submissions made by both sides, we find that the learned Commissioner (A) while upholding the Order-in-Original has recorded the following findings.
6. I have gone through the facts of the case, the impugned order and the documents furnished by the appellants. Adjudicating Authority has given a categorical finding in para 24 to 28 of the impugned order on various arguments of the appellants including the volumes of paper books submitted by the appellants. In para 24 of the impugned order, there is categorical finding to the effect that statements from so many persons were recorded, which evidence made out a strong case against the appellants by establishing that the imported scrap was never received in the factory and the retraction by few people can be termed as a clear case of after thought, as these were retracted after a lapse of nearly 3 years. In Para 25 of the impugned order, it is discussed the evidence of non-movement of scrap as could be seen from the information from the DCTO, in-charge of integrated check post at Bheemunivaripalem, Tada Mandal, Nellore Dist. and it proves beyond doubt that the trucks never traveled and the material did not come to factory. In para 26 of the impugned order, categorical finding was made as to how the documents furnished are fictitious in as much as even a single voucher is not signed by the recipient of truck bill. In para 27 & 28 of the impugned order, there is every reasoning for the decision taken by the Adjudicating Authority in issuance of notice under the proviso to Section 11A (1) and imposing the penalties. Impugned order is a well reasoned speaking order and I do not interfere with the order passed. I pass the following order.
ORDER
The impugned order is upheld and the appeal is dismissed. It can be seen from the above reproduced findings that the learned Commissioner (A) has not recorded any reasons for coming to such a conclusion but only mentions that the Adjudicating Authority has given a categorical finding.
7.1 Suffice to say that the reasoning given by the learned Commissioner (A) is not sufficient, at this stage, it is not possible for us to go into the voluminous evidence and come to a conclusion. It would be better if the learned Commissioner (A) does it so. As regards the submission made by the learned SDR regarding pre-deposit of the entire amounts, we are of the considered view that the amount already deposited by the appellant is sufficient to hear and dispose off the appeal by the learned Commissioner (A). We also record that the appellant will not seek for refund of the amount, which is already deposited by them.
8. In view of the above, without recording any opinion on the merits of the case, keeping all the issues open, we remand the matter back to the learned Commissioner (A) to reconsider the issue afresh by following principles of natural justice and dispose of the matter within three months from the date of production of this order. The stay applications and appeals are disposed of by way of remand.
(Pronounced and dictated in open Court) (P. KARTHIKEYAN) Member (T) (M. V. RAVINDRAN) Member (J) /rv/ 5