Custom, Excise & Service Tax Tribunal
M/S. Agarwal Pharmaceuticals vs Commissioner Of Central Excise on 28 January, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 3239-3241 of 2007-SM(BR)
[Arising out of Order-in-Appeal No. 115-118/CE/DLH/2007 dated 25.9.2007 passed by Commissioner of Central Excise (Appeals), Delhi II]
For approval and signature:
Hon'ble Mr. M. Veeraiyan, Member (Technical)
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 Their Lordships wish to see the fair :
copy of the Order?
4. Whether Order is to be circulated to the :
Departmental authorities?
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M/s. Agarwal Pharmaceuticals Appellants M/s. Agarwal Drugs Pvt.Ltd. Shri K.K. Khanna & Co.
Vs.
Commissioner of Central Excise Respondent
Delhi II
Appearance:
Shri Hemant Bajaj, Advocate for the Appellants
Shri S.Gautam, SDR for the Respondent
Date of Hearing/decision : 28.1.2010
ORAL ORDER NO . ________________________
Per M. Veeraiyan:
These three appeals arise out of common order in appeal by the Commissioner (Appeals) No. 115-118/CE/DLH/2007 dated 25.9.07.
2. Heard both sides.
3. On 25.9.01, the officers visited the factory premises of M/s. Agarwal Pharmaceuticals and recovered certain private records and based on them it was inferred that they have cleared pharmaceutical products valued at Rs.2,47,156/- involving the duty of Rs. 39,545/- to one M/s. K K Khanna Company (one of the appellants). The investigation at the end of M/s. Agarwal Drugs Pvt. Ltd. who was dealer of pharmaceutical products manufactured by M/s. Agarwal Pharmaceuticals revealed that they have received goods without bills worth Rs.25,358/- involving duty amount of Rs.4,058/-. Shri Ashok Agarwal partner of M/s. Agarwal Pharmaceuticals in his statement dated 18.10.01 referring to nine kaccha slips admitted clearance of pharmaceutical products without payment of duty to M/s. K K Khanna company and the said statement is not retracted. Original authority confirmed demand of Rs. 43,603/- from M/s. Agarwal Pharmaceuticals along with interest and imposed equal amount of penalty; he also imposed penalty of Rs.10,000/- on M/s. Agarwal Drug Pvt. Ltd. and a penalty of Rs.39,545/- on K.K. Khanna & Co. These demands and penalties stands upheld by the Commissioner (Appeals).
4. The learned Advocate for the appellants submits that the origin of 9 kaccha slips is a mystery. No specific questions were asked about alleged clandestine removal to M/s. Agarwal Drugs Pvt. Ltd. He seeks setting aside of demand and penalties on all the appellants. Even otherwise, the penalty imposed on Agarwal Drugs Pvt. Ltd. is high as they are alleged to have received goods involving duty of Rs.4058/- only.
5. Learned SDR reiterates the finding of the Commissioner (Appeals).
6. I have carefully considered the submissions from both sides and perused the records. Shri Ashok Agarwal, partner has clearly admitted that goods worth Rs.2,47,156/- has been cleared from their factory to M/s. K K Khanna & Co. without payment of duty. The said statement has not been retracted. The challenge to the original kaccha slips is clearly an afterthought. The clandestine removal by M/s. Agarwal Pharmaceuticals is thus not in dispute and the investigation at the end of M/s. Agarwal Drugs Pvt. Ltd. also show that goods were cleared from M/s. Agarwal Pharmaceuticals without bills. Under these circumstances, the demand of duty of Rs.43,603/- along with interest and imposition of penalty of equal amount on M/s. Agarwal Pharmaceuticals call for no interference. Penalties are also warranted on other appellants. Considering the quantum of duty involved and the entire facts and circumstances of the case, the penalty imposed on M/s. Agarwal Drugs Ltd. is reduced from Rs. 10,000/- to Rs.5,000/- (Rupees Five thousands only) and the penalty imposed on M/s. K.K. Khanna & Co. is reduced from Rs. 39,545/- to Rs.20,000/-(Rupees Twenty thousands only).
7. Appeals are disposed of as above.
( M. Veeraiyan ) Member(Technical) ss 2