Custom, Excise & Service Tax Tribunal
M/S. Suman Controls Pvt. Ltd vs C.C.E.-Bangalore-Ii on 8 August, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE COURT - I Application Involved: E/Stay/25549/2013 in E/25432/2013-SM Appeal Involved: E/25432/2013-SM [Arising out of Order in Appeal No.457/2012 - CE dt. 21/12/2012 passed by Commissioner of Central Excise , BANGALORE (Appeal-I) ] M/s. Suman Controls Pvt. Ltd. Appellant Versus C.C.E.-Bangalore-II Respondent
Appearance:
MR. G.H.PRADYUMNA ADV For the Appellant MR. S. TELI, DY. COMMISSIONER (AR) For the Respondent Date of Hearing: 08/08/2013 Date of Decision: 08/08/2013 CORAM:
HON'BLE SHRI B.S.V.MURTHY , TECHNICAL MEMBER Final Order No. 25809 / 2013 Order per. B.S.V.MURTHY The issue involved is only whether the appellant is liable to penalty under Rule 25 for clearing the goods under exemption Notification No.108/95-CE without fulfilling the conditions prescribed in the Notification.
2. After hearing both sides for some time, I find that the issue itself can be finally decided since the facts are not in dispute and the issue is only whether penalty is to be imposed under Rule 25 and what should be the quantum. Accordingly the requirement of pre-deposit is waived and appeal is taken up for final decision.
3. In this case the appellant cleared goods manufactured by them on 5 to 6 occasions under the Notification No.108/95-CE. The Notification requires a certificate to be issued by the authorities named for the purpose and such certificate is required to be produced before the Assistant Commissioner of Central Excise and only thereafter clearances should be effected. Even though appellants had the certificates, they did not produce the same before the Assistant Commissioner and cleared the goods. Further, in ER-1 returns also they mentioned wrong notification instead of mentioning the Notification No.108/95-CE. On these grounds the proceedings were initiated which has culminated in imposition of penalty of Rs.1 lakh. While not denying the observations and the proceedings initiated with regard to non-observation of conditions of NotificationNo.108/95-CE, the learned counsel submits that there was no intention to evade duty and the omissions were only procedural. He further submits that the original authority also accepted the fact that the appellants had the certificate in their possession.
4. The learned AR relies upon the decision in the case of VA Tech Escher Wyss Flovel Ltd. vs. CCE reported in 2004 (169) E.L.T. 65 (Tri.-Del.) wherein a exactly similar case was considered and penalty of Rs.1 lakh imposed for the offence.
5. After hearing both sides, I find even though on facts the decision relied upon by the learned AR is relevant and applicable unfortunately the quantum of duty involved is not available there. Moreover it is also not clear whether the certificate was available with the party before making clearances or not. What emerges in that case is that appellant had produced the certificate only before the Commissioner (Appeals) but for this difference, the decision is applicable and what emerges is that penalty is imposable under Rule 25. The learned counsel on behalf of the appellant is not able to show what was the total quantum of clearances and what is the total duty involved. However, he draws my attention to the invoices attached to the appeal memorandum and submits that these are the invoices covering all the removals. The approximate total of these invoices shows that the total duty involved would come to about Rs.6 lakhs. Having regard to the quantum of clearances and duty involved and facts and circumstances, in my opinion reduction of penalty to Rs.50,000/- from Rs.1,00,000/- would meet ends of justice. Accordingly, the appeal is rejected but for relief to the extent of Rs.50,000/- in penalty.
(Order Pronounced and Dictated in Open Court) B.S.V.MURTHY (TECHNICAL MEMBER) rv 3