Customs, Excise and Gold Tribunal - Calcutta
Shiva Steel Rolling Mills vs Cce on 17 August, 2004
ORDER M.P. Bohra, Member (J)
1. Heard Shri K K Banerjee, ld. Advocate for the appellants and Shri T K Kar, ld. SDR for the Respondent.
2. Shri Banerjee submits that in the present case, the appellants have paid the entire duty on receipt of the show-cause notice. So, the penalty is not sustainable. Therefore, he submits that the penalty may kindly be waived and the appeal may kindly be allowed. He relies on the decision of the Tribunal in Mumbai Bench in the case of Hemant Plastics & Chemicals Ltd. v. Commr. of Central Excise & Customs, Vadodara reported in 2001 (131) ELT 57 (Tri-Mumbai).
3. Ld. SDR, Shri Kar opposes the prayer of the ld. Advocate. He supports the findings of the authorities below.
4. In the present case, the entire duty has been paid after issuance of show-cause notice but before final adjudication by the Deputy Commissioner of Central Excise, Howrah North Division, i.e. 19th November, 2001. The Tribunal in the case of Hemant Plastics & Chemicals Ltd. (supra) has decided as under:
"Penalty-differential duty paid immediately on receipt of the show-cause notice-penalty not sustainable - Rule 173Q of central Excise Rules, 1944."
5. In the present case also, the duty has been deposited prior to final determination of the duty liability and therefore, the question for imposition of penalty does not arise.
6. In these circumstances, we find no cause for sustaining the order of the penalty. The Orders of Confirmation of duty are upheld and the Order of imposition of penalty are set aside. Appeal is allowed in part.