Custom, Excise & Service Tax Tribunal
M/S. Sam Turbo Industries Ltd vs Cce, Coimbatore on 20 April, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/275/2003
(Arising out of Order in Appeal No. 21/03 (CE) dated 24.01.2003 passed by the Commissioner of Central Excise (Appeals), Coimbatore).
For approval and signature
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
_________________________________________________________
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 should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair :
copy of the Order.
4. Whether order is to be circulated to the :
Departmental Authorities? __________________________________________________________
M/s. Sam Turbo Industries Ltd. : Appellant
Vs.
CCE, Coimbatore : Respondent
Appearance Shri M.N. Bharathi, Adv., for the appellants Shri V.V. Hariharan, JCDR, for the respondents CORAM Honble Ms. JYOTI BALASUNDARAM, Vice President Honble Dr. CHITTARANJAN SATAPATHY, Technical Member Date of hearing : 20.04.2011 Date of decision : 20.04.2011 ORDER No.________________ Per: Dr. Chittaranjan Satapathy, Heard both sides.
2. Shri M.N. Bharathi, Ld. Advocate appearing for the appellants states that though the authorities below have recorded payment of only Rs. 4,20,000/- towards duty, the appellants had paid another Rs.1,97,612/- towards duty on 30.01.99 and on 03.09.99, before issue of the Order-in-Original on 01.12.99. He further states that in addition to paying the duty amount, the appellants have also paid Rs.2,10,000/- towards penalty on 11.09.04, 24.10.04 and on 30.01.04. He also states that the appellants were not given the choice of paying 25% of the penalty amount as provided under Section 11AC of the Central Excise Act, 1944, which is required to be provided as per the decision of the Honble Delhi High Court, in the case of K.P. Pouches (P) Ltd. Vs. UOI 2008 (228) ELT 31 (Del.). The Ld. Advocate also pleads for allowing the benefit of cum-duty assessment, which has not been given by the authorities below.
3. Shri V.V. Hariharan, Ld. JCDR, appearing for the department states that to avail of the 25% penalty benefit, the appellants are required to not only pay the duty and 25% of the penalty amount but also the interest on the duty. He has however, no objection to grant of the benefit of cum-duty assessment to the appellants and remanding the matter for fresh determination on that ground to the original authority.
4. Considering the submissions from both sides, we set aside the impugned order and remand the matter to the original authority for re-determining the duty amount after extending the benefit of cum-duty assessment. He shall also take into account the payments claimed to have been made towards duty and penalty subject to verification and also give them the choice of option for 25% of the penalty amount as per Para-27 of the order of the Honble Delhi High Court in the case of K.P. Pouches (P) Ltd. Vs. UOI (cited supra) and in accordance with the provisions of Section 11AC of the Central Excise Act, 1944. The appellants are also to be given an adequate opportunity of hearing before passing a fresh order.
5. The appeal is allowed by way of remand in the above terms.
(Operative part of the Order dictated and pronounced in the open
Court on 20.04.11)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE PRESIDENT
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