Custom, Excise & Service Tax Tribunal
Om Sai Motor Industries vs Commissioner, Central Excise &Amp ... on 23 September, 2022
1
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Excise Appeal No. 50057 of 2022-SM
(Arising out of order-in-appeal No. DDN/EXCUS/000/APPL/149/2020-21 dated
30.03.2021 passed by the Commissioner, Central Goods & Service Tax (Appeals),
Dehradun).
M/s Om Sai Motor Industries Appellant
Plot No. 64, Sector-II
DC, IIE, SIDCUL, Pant Nagar
Rudrapur, U.S. Nagar, Uttarakhand.
VERSUS
Commissioner, Central Goods & Respondent
Service Tax and Central Excise 2nd & 3rd Floor, Shree Palace Nathanpur, Dehradun Uttarakhand -248001.
APPEARANCE:
Sh. Jitin Singhal, Advocate for the appellant Ms. Tamanna Alam, Authorised Representative for the respondent CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER No. 50917/2022 DATE OF HEARING/DECISION: 23.09.2022 ANIL CHOUDHARY:
Heard the parties.
2. The issue involved in this appeal is whether duty of Rs.1,97,419/- has been rightly demanded alongwith equal amount of penalty under Section 11AC of the Act. The duty alleged to be tax short paid or not paid pursuant to clearance of the goods. 2
3. Show cause notice dated 02.05.2019 was issued alleging that the appellant is manufacturer of auto parts, which are dutiable have charged and collected tax from their customer but did not pay to the Government. Thus, they have contravened the provisions of Central Excise Act and the Rules. Accordingly, the duty short paid / not paid was demanded as follows:-
Sl. Period Name Monthwise Central Applicable Amount of No. and transaction Excise rate of Central details of value of Tariff Central Excise goods goods Heading Excise duty cleared cleared in number of duty payable Rs. cleared goods
1. May, Steel 6,00,304/- 7310.1090 12.5% 75,038/-
2017 Rack
Engine
2 June, Body 9,79,048/- 7310.1090 12.5% 1,22,381/-
Shell etc.
2017
Total 15,79,352/- 1,97,419/-
4. During the adjudication proceedings, the appellant has not filed reply. However, they sought adjournment, which was allowed on two-three occasions and thereafter ex-parte order-in-
original was passed. The proposed demand was confirmed alongwith penalty.
5. The Commissioner (Appeals) rejected the appeal and confirmed the order-in-original recording the finding that the appellant has failed to intimate the Department that the goods have been returned being defective, and thereafter conducted the repair on the goods and were again delivered to the buyer on payment of GST, which is admitted fact. Earlier the goods were sent during the Central Excise regime, which have been returned back before 30.06.2017 3 being defective, not accepted by the buyer. Learned Counsel also draws my attention to the certificate issued by the buyer that earlier this appellant has despatched the goods vide Invoice No. 130, 131, 132, 133 and 134 dated 13.05.2017 to 29.06.2017. However, the goods were returned to the appellant as the goods were defective in nature vide debit Note No. 3, 4, 5, 6 and 9 dated 13.05.2017 to 30.06.2017. It is further certified that no payment was made by the buyer to the appellant seller. It is further stated that subsequent to rectification of the defects, the appellant manufacturer have again despatched the goods under GST Invoice No. 1 to 10 dated 05.07.2017 to 20.08.2017. This time on being satisfied with the quality of goods, the buyer M/s Lal Ji Gopinath Ji Industries has paid the amount including GST. It is also submitted that the buyer is also a registered manufacturer with the Central Excise Department. Accordingly, learned Counsel for the appellant prays for allowing the appeal by way of remand for a proper verification of the facts.
6. Learned Authorised Representative Ms. Tamanna Alam relies on the impugned order.
7. Having considered the rival contentions, I find that both the parties are registered with the Central Excise Department and both are located at Rudrapur, thus, under the jurisdiction of the same Central Excise authority. Further, I find that appellant have led sufficient evidence before this Tribunal, which needs to be verified for the ends of justice. Accordingly, I allow this appeal by way of remand to the original Adjudicating Authority with direction to hear the appellant and verify the records, and if required, also verify the 4 records of the buyer and thereafter pass reasoned order in accordance with law.
8. The appellant is also directed to appear before the Adjudicating authority within a period of sixty (60) days from the date of receipt of copy of this order alongwith the representation and seek opportunity of hearing. The appellant shall co-operate with the Adjudicating Authority in the adjudication proceeding. All the issues are kept open.
9. In the result, the appeal is allowed, by way of remand.
(Dictated and pronounced in open Court).
(Anil Choudhary) Member (Judicial) Pant