Custom, Excise & Service Tax Tribunal
M/S Ajay Food Industries vs C.C.E., Jaipur Ii on 18 August, 2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision: 18.8.2010 Central Excise Appeal No.189 of 2005 Arising out of the order in appeal No.656(RM)CE/JPR-II/2004 dated 20.10.2004 passed by the Commissioner of Central Excise (Appeals-II), Jaipur. For Approval and Signature: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? Yes 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 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 M/s Ajay Food Industries Appellants Vs. C.C.E., Jaipur II . Respondent
Appearance:
Shri Saurav Yadav, Advocate for the appellants Ms. Monika Batra, Authorized Departmental Representative (SDR) for the Revenue Coram: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Technical Member Oral Order No.______________________ Per Shri Justice R.M.S. Khandeparkar:
Heard the learned Advocate for the appellants and the SDR for the respondent.
2. This appeal arises from the order dated 20th October, 2004 passed by the Commissioner (Appeals), Jaipur. By the impugned order, the appal before the Commissioner (Appeals) was dismissed for non-compliance of the requirement of pre-deposit in terms of the order passed in stay application, while rejecting the application for modification of the stay order.
3. The charge against the appellants was that on comparison of the MRP as declared in the price list with the price quoted in the invoices issued by the appellants, it was revealed that the appellants had been collecting the price lower than the MRP declared by them and the same was being done in order to maintain the total value of the production from their unit within the limits prescribed under Notification No.8/99-CE, dated 28th February 1999 and thereby were evaded the excise duty amounting to Rs.1,09,357/-. Consequently, a show cause notice came to be issued on 9th September 2002. The same was contested on the ground that the appellants had filed revised price list on 21.4.1999. It was the contention on behalf of the appellants that if the price charged as disclosed in the invoices is compared with the said revised list, then there would be no difference between the same and the one declared. The adjudicating authority rejecting the contention of the appellants confirmed the demand for Rs.1,09,357/- along with interest and an equal amount of penalty. When the order was challenged before the Commissioner (Appeals), the appellants filed stay application which came to be disposed of by the Commissioner (Appeals) on 9.7.2004, directing the appellants to deposit the entire duty and 50% of the penalty. The appellants filed an application for modification of the said order on the ground that they had not concealed or suppressed any material fact regarding lowering the price of their product. The Commissioner (Appeals) however, being not satisfied with the contentions sought to be raised, while dismissing the stay application, also dismissed the appeal for non-compliance of the order regarding the requirement of pre-deposit. While assailing the impugned order, drawing our attention to the decisions in the matter of H & R Johnson (India) Ltd. vs. Central Board of Ex. And Customs, New Delhi reported in 2002 (144) ELT 506, Mona Electronics vs. C.C.E., Patna reported in 2001 (135) ELT 1293 and Hindustan appliances vs. C.C.E., New Delhi reported in 2002 (142) ELT 212, the learned Advocate for the appellants submitted that the appellants had not suppressed any fact and merely because the appellants could not establish the fact that the revised price list was filed, there could be no justification to confirm the demand and therefore, the appellants have a good case on merits and this aspect was not considered by the Commissioner (Appeals) while dismissing the appeal.
4. On the other hand, the SDR placing reliance in the decision of the Tribunal in the matter of Paresh Plastics P. Ltd. vs. C.C.E., Rajkot reported in 2008 (226) ELT 415 as well as to the sub-rule 2A of Rule 173C of the Central Excise Rules, 1944 submitted that it is mandatory for the assessee to file price list and to charge the price accordingly. The appellants having failed to comply with the said requirement. The adjudicating authority had confirmed the demand and therefore, in order to enable the appellants to argue the matter before the Commissioner (Appeals) it was necessary for the assessee to deposit the entire duty and 50% of the penalty as was directed by the lower appellate authority and on failure thereof, the appeal having been dismissed, there is no case for interference.
5. Undoubtedly, the Rule 173 C(2A) of the said Rules provides that Every assessee who produces, manufactures or warehouses goods notified under Section 4A of the Act shall file with the proper officer a declaration in such form and in such manner and at such interval as the Central Board of Excise and Customs may specify, declaring the retail sale price of such goods, amount of abatement, if any on such sale price and such other particulars as may be specified by the said Board.
6. The fact that the law clearly requires an assessee to file price list in terms of the provisions of law is not in dispute. In fact, it cannot be disputed that the same was well within the knowledge of the assessee. It was the case of the appellants themselves that they had filed revised price list on 21.4.1999. However, they could not produce any proof of actual filing of any such price list. Rather, it was a case of the appellants as revealed from their reply to the show cause notice, that the receipt of the price lists submitted with effect from 21.4.99 was not traceable, probably because the same was submitted by hand to the Range Superintendent and he did not consider to obtain a dated and signed acknowledgement from the Range Office. The Appellants were referring to the act of their Manager by name, Shri Jethanand, who is stated to have filed such additional price list.
7. Once it is the case of the appellants themselves that though as per law, they were required to file the correct price list and that they had actually filed it on 21.4.99, it was necessary for them to establish the same and they could not blame the Department for their failure to prove the same. Inspite of a fair opportunity being given to the appellants, the appellants could neither give any proof of filing of revised price list nor it is the case of the appellants that such price list was misplaced by the Department, in latter case, perhaps no fault could have been found with the appellants.
8. Even otherwise, we do not find any substance in the contentions of the appellants that the appellants had a good case on merits. Once the appellants themselves have admitted their inability to establish their claim that they had filed additional price list, in our considered opinion, no fault can be found with in the impugned order. In this regard, the SDR is justified in drawing our attention to the decision of the Tribunal in the matter of Paresh Plastics P. Ltd. (supra).
9. It was also sought to be contended that the appellants were filing RT-12 returns and therefore, they could not have been accused of suppression of the facts. The basic point involved in the matter is that the party is not supposed to charge the amount lower than the price list, particularly in the circumstances, where the party is seeking to avail the benefit of SSI exemption, where there is limit prescribed was regarding the total turnover.
10. As far as the decisions in the matter of Mona Electronics and Hindustan Appliances are concerned those were delivered in totally different set of facts. Besides, they were not in relation to the requirement of the compliance of the pre-deposit at the time of filing of appeal. Hence, they are of no relevance for the decisions in the matter in hand.
11. The appeal , therefore, fails and is dismissed.
(Justice R.M.S. Khandeparkar) President (Rakesh Kumar) Technical Member scd/