Custom, Excise & Service Tax Tribunal
M/S A.P.S. Enterprises Pvt.Ltd vs Cce, Delhi-Ii on 30 November, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI COURT NO. III E/3729-3730/2010-SM [Arising out of Order-In-Appeal No.406-407/CE/D-II/2010 dated 12.08.2010 issued by CCE, Delhi-II] For approval and signature: Honble Ms. 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? 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? M/s A.P.S. Enterprises Pvt.Ltd. Appellant Vs. CCE, Delhi-II Respondent
Coram: Honble Ms. Archana Wadhwa, Judicial Member Appearance:
Shri. V.K. Gupta, Adv for the Appellant Shri. M.S. Negi, AR for the Respondent Date of Hearing: 30.11.2012 final ORDER NO . 55196-55197/2013 Per Ms. Archana Wadhwa:
Both the appeals, one filed by the M/s APS Enterprises Pvt. Ltd. and other by Shri Anup Kumar Mittal, Director are being disposed of by a common order as they arise out of the same impugned order passed by authorities below. As per facts on records M/s APS Enterprises Pvt. Ltd. is engaged in the manufacture of Aluminium Wire Rods falling under Chapter 76 of the Central Excise Tariff Act. Their factory was visited by the officers of Anti-Evasion unit of Delhi-II, Commissioner 11-10-2008. On verification of the stock of the finished goods, shortage to the extent of 15,555 Kg. involving Central Excise Duty of Rs.3,02,810/- was detected. The Director of the manufacturing unit Shri Anup Kumar Mittal as also Shri Pawan Kumar Jha, Supervisor, in their on-the-spot statement accepted the shortages and also produced non-cenvatable papers showing clearance of the said goods. They also deposited the duty in question.
2. Based on the above, the proceedings were initiated against the appellants for confirmation of demand of duty as also for imposition of penalty. The said proceedings resulted in confirmation of demand of duty of Rs. 3, 02,810/- and also imposition of penalty of Rs. 75,703/- being 25% of the duty amount. In addition, penalty of Rs. 30,281/- was imposed on the Director of the company.
3. The said order of the original adjudicating authority was upheld by Commissioner (Appeals). Hence, the present appeal. Shri V.K.Gupta learned Advocate appearing learned for the appellant, is not disputing the confirmation of demand of duty on the allegation of clandestine removal. However, the only contention raised before me is that the entire realization was required to be considered as cum-duty and as such the benefit of the duty now being confirmed is required to be extended to them. For the above proposition reliance is made on the Supreme Court decision in the case of Amrit Agro Industries Ltd. Vs CCE, Ghaziabad [2007(210)ELT 183 (SC)]. As regards penalty imposed upon Director. Learned advocate submit that inasmuch as the manufacturing unit has already been penalised, a separate penalty may not be imposed upon the Director.
4. After hearing the learned DR I uphold the findings of clandestine removal. However, I agree with the learned advocate that the entire consideration for the goods cleared clandestinely is required to be treated as cum-duty price. As such, I set aside impugned order and remand the matter to adjudicating authority for requantification of the demand after extending the benefit of cum-duty price. Appeal of M/s APS Enterprises Pvt. Ltd. is disposed off accordingly.
5. As regards appeal of M/s Anup Kumar Mittal, I find that the clandestine activities were being done with due knowledge of the Director, which stand accepted by him in his statement. The penalty imposed upon him, in terms of the provisions of Rule 26 is only to the extent of 10% of the duty effect. As such, I find no justifiable reason to interfere, in the said penalty. His appeal is accordingly rejected.
6. Both the appeals are above manner.
(Pronounced in the open Court on) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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