Custom, Excise & Service Tax Tribunal
Slv Steels & Alloys Pvt Ltd vs Commissioner Of Central Excise, ... on 6 October, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: E/Stay/20766/2014 in E/20723/2014-SM Appeal(s) Involved: E/20723/2014-SM [Arising out of Order-in-Original No. 27-2013 dated 27/09/2013 passed by Commissioner of Central Excise , TIRUPATI] For approval and signature: HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Slv Steels & Alloys Pvt Ltd Sy.no.13, Nemakallu Village, Bommanahal Mandal, ANANTAPUR DIST, - 00 AP Appellant(s) Versus Commissioner of Central Excise, Customs & Service Tax Tirupati 9/86-A...BEHIND WEST CHURCH COMPOUND, AMARAVATHI NAGAR, M.R.PALLI, - 517502 Andra Pradesh Respondent(s)
Appearance:
Mr. B. Venugopal, Adv For the Appellant Mr. Pakshi Rajan, A.R. For the Respondent Date of Hearing: 06/10/2015 Date of Decision: 06/10/2015 CORAM:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER Final Order No. 22003 / 2015 Per : ARCHANA WADHWA The prayer in the application is to dispense with the condition of predeposit of penalty of Rs 3,00,000/- imposed in terms of Rule 25 of Central Excise Rules 2002.
2. As per facts on record, the Central Excise Officers found three trucks loaded with sponge iron manufactured by the appellant outside their factory premises. Inasmuch as the goods were not accompanied with the invoices, they seized the said goods and further carried out certain investigations. As a result of further investigations it was seen that the appellant has been indulging in clandestine activities for the past period also. In view of the above, proceedings were initiated against them by way of present show cause notice dated 24.12.2001 proposing to confiscate the trucks along with goods and imposing penalties. There was no proposal to confirm the duty involved in the said goods loaded in the said three trucks. However, another show-cause was issued on 21.04.2014 proposing to confirm the total demand of Rs. 32,62,751/- in respect of clandestine activities which also included the duty of around Rs 1.60 lakhs involved in the goods loaded in the trucks found outside the factory premises. The appellant in respect of the second show-cause notice dated 21.04.2014 approached the Settlement Commission who vide their order dated 13.02.2015 directed the applicant/appellant to deposit the entire duty of Rs 32,62,751/- along with interest of Rs 4,04,261/-. Further penalty of Rs 1.75 lakhs was imposed upon the appellant.
3. Inasmuch as the show-cause notice involved in the present case, proposing separate imposition of penalties was not the subject matter of the order of the Settlement Commission, the Commissioner vide his impugned order confiscated the goods with an option to the appellant to redeem the same on payment of redemption fine of Rs 3,00,000/- and also imposed penalty of Rs 3,00,000/- on the appellant.
4. The appellants contention is that the entire case of clandestine removal including the goods found loaded in the three trucks was the subject matter of the Settlement Commissions order and it was in that circumstances a total penalty of Rs 1.75 lakhs was imposed by Settlement Commission. As such, the order of imposition of penalty by the Settlement Commission relates to the entire clandestine activities and the impugned order imposing further penalty of Rs 3,00,000/- can not be held to be justifiable. Learned advocate accordingly prays for dispensing with the condition of predeposit.
5. Learned A.R. appearing for the Revenue submits that inasmuch as the show-cause notice involved in the present proceeding was not clubbed with the second show-cause notice demanding duty, the adjudicating authority was justified in imposing separate penalties upon the appellants.
6. At this stage I find that though it is a fact that the present show cause notice was not placed before the Settlement Commission while taking up the matter relating to payment of duties by way of second show-cause notice, but the fact remains that the duty involved in the present case was the subject matter of subsequent show-cause notice which was settled by the Settlement Commission. As such it can be safely concluded that the duty of Rs 1.60 laksh involved in the goods loaded on to the three trucks was settled by the Settlement Commission while deciding the matter in respect of the second show cause notice raising the entire duties for the past period also. It was under these circumstances, that a penalty of Rs 1.75 lakhs was imposed upon them and immunity was granted to the appellant from penalty in excess of that amount. As such, it can be safely held that the penalty of Rs 1.75 lakhs imposed by the Settlement Commission covered the duty of Rs 1.60 lakhs relatable to the goods loaded on to the three trucks. As further immunity was granted to the appellant from imposition of penalty, I am of the view that separate imposition of penalty of Rs 3,00,000/- by way of the present adjudication order is not appropriate. Accordingly I waive the same and allow the stay petition.
7. At this stage with the consent of both sides, I proceed to decide the appeal itself. The only remaining part required to be decided is confiscation of the goods with redemption fine of Rs 3,00,000/-. Inasmuch as the appellants have admitted clandestine activities and have approached Settlement Commission, who have not decided on the confiscability of the goods because the present show-cause notice was not placed before them, I am of the view that the confiscation issue remain open requiring to the decided.
8. As the appellants have admitted that the goods in question were cleared by them clandestinely and were found loaded in the three trucks stationed outside their factory, the goods become liable to confiscation. As the duty involved is to the extent of Rs 1.60 lakhs approximately, the redemption fine is reduced from Rs. 3,00,000/- to Rs 1.50 lakhs. (rupees one lakh fifty thousand only). However, for the reasons recorded above, the penalty is set side. The stay petition as also the appeal are disposed of in above manner.
(Order pronounced in open court) ARCHANA WADHWA JUDICIAL MEMBER pnr 5