Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs M/S. I C I (India) Ltd on 22 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 3880 of 2005 - EX[DB]
[Arising out of Order-In-Original No. 384/CE/CHD/2005 dated 27.10.2005 passed by Commissioner of Central Excise(Appeals), Chandigarh]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Rakesh Kumar, 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?
Commissioner of Central Excise, Appellants
Chandigarh
Vs.
M/s. I C I (India) Ltd. Respondent
Appearance:
Shri M S Negi, DR for the Appellants Shri Ajay Jain, Advocate for the Respondent Date of Hearing /decision: 22.11.2013 Final ORDER NO. A/ 58381 /2013-Ex(DB) Per Archana Wadhwa (for the Bench):
Being aggrieved with the order passed by the Commissioner vide which he has set aside the penalty on the respondents, Revenue has filed the present appeal. We have heard Shri M. S. Negi, learned DR appearing for the Revenue and Shri Ajay Jain, Advocate appearing for the respondents.
2. It is seen that Commissioner (Appeals) vide his impugned order upheld the demand of duty to the extent of Rs.21,14,169/- . However, as the said duty along with interest was deposited by the respondents even before the issue of show cause notice, he has set aside the penalty imposed upon the respondents by following the Larger Bench decision of the Tribunal in the case of CCE vs. Machino Montell Pvt. Ltd. [2004 (62) RLT 709].
3. Learned advocate appearing for the respondents fairly agrees that the said order of the Commissioner (Appeals) does not stand appealed against by them in respect of duty confirmation and interest confirmation. They have accepted the said duty. However, he submits that non payment of duty in question was not on account of clandestine activities thus justifying the non- invocation of provisions of section 11AC. Elaborating his argument, he submits that there was excess payment in some clearances and less payment in certain clearances The excess payment of duty already stand refunded to them and accordingly they have accepted their liability to pay duties which were less paid. As such, he submits that there was no justification for invocation of Section 11 A and Commissioner (Appeals) has rightly dropped the same.
4. Countering the arguments learned DR submits that Commissioner (Appeals) has not taken into consideration the invokation or otherwise of Section 11AC and simplicitor dropped the penalty on the basis of declaration of law by the Larger Bench in the case of Machino Montell (cited supra). Admittedly, the said decision of the Tribunal in the case of Machino Montell stand reversed by the Honble Punjab and Haryana High Court and as such, has no applicability.
5. We agree with the learned DR. The adjudicating authority has simply dropped the penalty based upon the Larger Bench decision of the Tribunal in the case of Machino Montell, which stand reversed by the Honble Punjab and Haryana High Court. We also took note of the submissions of the learned advocate for the respondents that this is not a fit case for invokation of section 11 AC. However, inasmuch as the penalty does not stand dropped on the above legal issue, we deem it fit to set aside the impugned order and remand the matter to Commissioner (Appeals) for consideration of the appellants pleas relatable to non- invokation of section 11 AC. It is made clear that other part of the Commissioner (Appeals) order confirming demand of interest and dropping of redemption fine is not being interfered into and the matter is remanded to him for reconsideration of penalty issue.
6. The appeal of the Revenue is remanded in the above terms.
(Dictated and Pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
( Rakesh Kumar ) Member(Technical)
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