Custom, Excise & Service Tax Tribunal
Shree Satpuda Tapi Parisar Ssk Ltd vs Commissioner Of Central Excise, Nasik on 21 June, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E2353/2004-Mum. & E/2620/2004-Mum. (Arising out of Order-in-Appeal No. CEX-XI/JMJ/228/916/NSK/APL/2004 dated 10/06/2004 passed by the Commissioner of Central Excise (Appeals) Nasik ) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. P.K.Jain, 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?
=============================================================
Shree Satpuda Tapi Parisar SSK Ltd.
Vs.
:
Appellant
Commissioner of Central Excise, Nasik
Respondent
And
Commissioner of Central Excise, Nasik
Vs.
Appellant
Shree Satpuda Tapi Parisar SSK Ltd.
:
Respondent
Appearance
Shri A.D. Kambli, Consultant for
Shree Stapuda Tapi Parisar SSK Ltd.
Shri Ahibaran, Additional Commissioner (A.R.)for department
CORAM:
Mr. S.S. Kang, Vice President
Mr. P.K. Jain, Member (Technical)
Date of hearing : 21/06/2013
Date of decision : 21/06/2013
ORDER NO.
Per : S.S. Kang
Heard both sides.
2. Appellant filed this appeal No.E/2353/2004 against the impugned order passed by Commissioner (Appeals) whereby demand of Rs.5,23,182/- was upheld and penalty of Rs. 2,00,000/- imposed under Section 11AC of the Central Excise Act.
3. Revenue also filed appeal No.E/2620/04 against the same impugned order challenging the order of Commissioner (Appeals) whereby penalty was reduced from equal amount of duty to Rs.2,00,000/-. The appeal filed by the Revenue was dismissed vide order dt. 22.11.2005 by the Tribunal. The Revenue challenged the order placed by the Tribunal. The Honble Bombay High Court vide order dt. 10.10.2012 in Central Excise Appeal No. 65 of 2007 remanded the matter to the Tribunal to reconsider the issue of imposition of quantum of penalty afresh.
4. As both the appeals are same impugned order therefore are being taken up together.
5. The brief facts of the case are that appellants are engaged in the manufacturer of sugar. During the period from October 1997 to November 1997 the manufacturer has cleared 1585 MTs of sugar on loan basis to M/s. Food Corporation of India (FCI) in terms of the Ministry of Food & Civil Supply of the Government of India order dated 27.10.97. The appellants were directed to clear the levy sugar, as the quota of levy sugar was not available. The free sale sugar was cleared by discharging the duty liability, as the rate applicable to levy of sugar. Subsequently, the Government of India vide order dt. 29.11.1999 decided to treat the entire loan quantity of sugar as free sale sugar and reimbursed the price difference between the levy of sugar and Free Sale Sugar. The manufacturers were also directed to pay excise duty on the quantity of sugar involved at the rate applicable for Free Sale Sugar. In pursuance to the order passed by the Government of India. The appellants received the differential amount in the month of November 2001. A show cause notice was issued demanding duty along with interest and also proposing to impose penalty. The adjudicating authority confirmed the demand along with interest and also imposed equivalent amount of penalty under Section 11AC of the Central Excise Act. The manufacturer filed appeal before Commissioner (Appeals) and Commissioner (Appeals) upheld the adjudication order in respect of the demand and interest however reduced the penalty.
6. The contention of the Ld. Counsel appeared on behalf of the manufacturer is that the differential duty has been paid in the month of September 2001, as the appellant received intimation that Government of India is going to reimburse the differential amount. The contention is that it is not a case for imposition of interest or penalty as the appellants were clearing the Free Sale Sugar against the quota of levy sugar as per the direction of the Government of India there was no intention to evade payment of duty on the part of the appellant.
7. The Revenue submitted that w.e.f.11.5.2001 amended the provisions of Section 11B of the Central Excise Act. The interest is made applicable in all situations where there was a short levy or short payment of duty and the said interest liability was payable where differential duty was determined by the department or the assessee himself discharged the differential duty liability. In the present case as differential duty has been paid in the month of September 2012. Therefore the manufacturer is liable to pay interest from 11.5.2001 from the date of clearance to the date of payment of duty.
8. In respect of penalty the Revenue submitted that appellant had not informed the Revenue regarding clearance of levy sugar and in respect of clearance of duty. It is also submitted that though the appellant cleared the sugar against the quota of levy sugar though charge the duty as applicable to the Free Sale Sugar hence, there is an intention to evade payment of duty.
9. In respect of interest, we find that w.e.f. the 11.5.2001 the provisions of Section 11AB of the Central Excise Act were amended and the provisions of Section 11AB was made applicable in all situations wherever there was a short levy or short payment etc. of duty. In view of this the applicants are liable to pay interest w.e.f 11.5.2001 till the payment of differential duty.
10. In respect of penalty the manufacturer is clearing sugar as per the directions to the Food Corporation of India as per the director of Government of India decided that the Free Sale Sugar which was cleared on loan basis as levy sugar to the Free Sale Sugar and subsequently decided reimbursed the differential duty treating the same as Free Sale Sugar. In view of this we find merit in the contention of the appellant/manufacturer that it is not a case for imposition of any penalty. In view of this the penalty imposed under Section 11AC of Central Excise Act, is set aside the Appeal No.E/2353/04 is allowed to that extent and appeal filed by appellant in Appeal No. E/2620/04 is dismissed.
(Dictated in court) (P.K. Jain) Member (Technical) (S.S. Kang) Vice President Sm ??
??
??
??
5