Custom, Excise & Service Tax Tribunal
Pepsico (I) Holdings Pvt. Ltd vs Cce Mumbai Ii on 27 September, 2017
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
E/87703/16
(Arising out Order-in- Appeal No. PK/66/M-II/2016 dated 29.06.2016 passed by the Commissioner of Central Excise, Mumbai II)
For approval and signature:
Honble Shri Raju, Member (Technical)
1. Whether Press Reporters may be allowed to see No
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 No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Seen
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Pepsico (I) Holdings Pvt. Ltd.
Appellant
Vs.
CCE Mumbai II
Respondent
Appearance:
Shri Rajesh Ostwal, Advocate for the appellant Shri S.J. Sahu, AC (AR) for the respondent CORAM:
Honble Shri Raju, Member (Technical) Date of hearing : 15.09.2017 Date of decision : 27.09.2017 O R D E R No: ..
Per: Raju The appellants Pepsico Holdings Pvt. Ltd. are in appeal against confirmation of demand and imposition of penalty. They are however contesting only the penalty imposed on them.
2. Ld. Counsel for the appellants argued that they were clearing certain goods to their warehouse for further sale. The warehouse were being treated as a depot and therefore the excise duty paid at the time of clearance from the factory to the warehouse was subject to revision on account of time when the said goods were sold from their depot. The entire differential duty was paid by the appellants before issue of show-cause notice. He further argued that in some cases refund became due to them but they have not claimed the same.
3. Ld. Counsel further argued that they have paid excess duty amounting to `19,74,334/- and no refund of the same has been claimed. In view of the above, there cannot be any intention to evade central excise duty and in such circumstances, penalty should not be imposed. He further pointed out that they had also applied for provisional assessment. However, due to failure to execution of bond, the assessment could not be made provisional. He pointed out that this showed their bonafide.
4. I have gone through the rival submissions.
5. I find that the appellants are challenging imposition of penalty. As against short payment of `3,27,982/- there has been excess payment of `19,74,834/- during the same period. The appellants have not claimed refund of the same. In these circumstances, action of the appellant cannot be treated as malafide, with intention to evade central excise duty. If at all, it was a procedural lapse on their part, consequently, penalty imposed against the appellant is set aside.
6. The appeal is allowed in above terms.
(Pronounced in Court on ..............................) (Raju) Member (Technical) //SR
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E/87703/16