Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Central Excise, ... vs Ashok Leyland on 24 October, 2001
Equivalent citations: 2004(161)ELT476(TRI-CHENNAI)
JUDGMENT
1. This appeal has been filed by the Revenue against the order in Appeal No. 153/2000 (M-III) dated 23.11.2001 passed by the Commissioner (Appeals), Chennai on the ground that the Commissioner (Appeals) has erred in observing in para 6 of the impugned order in appeal that the imposition of penalty is not called for since the respondents had paid the differential duty well before the issue of show cause notice, whereas in this case the details of the transfer of vehicles from one Regional Sales Office (RSO) to another RSO during the period 1.4.98 to 30.09.98 along with the details of differential duty involved due to such transfer were not furnished to the department till the preventive officers visited the unit and had it non been for the detection of non-payment by Department, substantial revenue would have been lost by the department and the plea of bona fides should be construed only in this factual backgrounds of non-payment of substantial amount of duty at the relevant time when the duty ought to have been paid. The Revenue also submits that the delay ed payment of duty by itself would not absolve the assessee of the liability to penalty under law. They further submitted that the Commissioner (Appeals) did not consider the point that the amount remitted by the unit on 23.2.99 does not pertain to a quarter 1.10.98 to 31.12.98 which immediately precedes the date of remittance but it pertains to the period of two quarters i.e. 1.4.98 to 30.06.98 and 1.7.98 to 30.09.98. Hence the contention that respondents were calculating the differential duty for every quarter properly and paying on quarterly basis appears to be not correct. It was further submitted that it is also incorrect to say that the visit of the preventive officers was just a co-incidence to the date of remittances as the unit has not shown to the satisfaction that regular date of remittance of quarterly payment falls on the date next to the date of visit of preventive officers. The Revenue has also submitted that the observation of the adjudicating authority in his order in original that the unit would have forgotten to pay the differential duty if it was not pointed out by the preventive officers holds water and that it was not a case of non-remittance of duty either on the basis of misapprehension of the provisions of law or due to in advertance not lacking in bona fides and hence it cannot be argued that the adjudicating authority should not impose the penalty. They have also submitted that in the order No. 1620/97-A dated 26.08.97 in Appeal No. E/2223/90-A in the case of Seimens Lted v. CCE, Aurangabad reported in 1999 (113) ELT 552 (Tribunal) the CEGAT has not accepted the contention of the assessee in that case to set aside the penalty, in view of the fact that they had paid duty well before issue of show cause notice and the CEGAT did not set aside penalty but only reduced the quantum thereof under Rule 173Q. Therefore, the Revenue has prayed that the portion of the order in appeal allowing the appeal of the assessee as regards penalty under Section 11AC and further penalty of Rs. 45,000/- under Rule 173Q be set aside and the order in original No. 56/99 dated passed by the original authority be restored fully.
2. The learned DR reiterated the grounds of appeal and sought for allowing the appeal.
3. Shri R. Raghavan, learned Counsel appearing for the respondents took me to the whole background of the case and stated that they have been paying duty on each chassis removed from the Hosur Plant at the price of the Depot to whom it is consigned by the Regional Sales Office (RSO for short) and the payment of duty would be at the price at which the Depot would be ultimately selling those chassis. Though the Depots are selling the vehicles to the actual customers but they have been paying duty from the manufacturing unit based on ultimate sale by the RSO. The department insisted that the assessee should pay the differential duty also in case where the goods are transferred to other RSOs and they were also getting the set off on vehicles which were sold at the price lower than the value adopted on clearance from that particular depot. Though the Commissioner (Appeals) has observed that they were paying differential duty quarterly, it was not quarterly payment as they were paying differential duty as and when they were able to collect details from all the 22 Depots spread all over the country. In this connection he invited my attention to the payment details made by the respondents for the period 9/96 to 2/98 which are extracted herein below:
Period BED ESL No./ Cess ESI.No./
Rs. Date Rs. Date
Sep.'96 to 436157.00 18575/6.10.97 13707.00 406/6.10.97
July'97
Aug.'97 2282.73 20727/3.11.97 283.28 526/3.11.97
Sept.'97* 190591.00 38439/16.03.98 5180.00 979/16.3.98
Oct.'97 210996.00 38440/16.3.98 3837.00 980/16.3.98
Nov.'97 23974.00 38441/16.3.98 409.00 981/16.3.98
Dec.'97 28996.00 38442/16.3.98 6.00 982/16.3.98
Jan.'98 76252.00 12595/15.7.98 2248.00 227/15.7.98
Feb.'98* 3074.00 12596/15.7.98 107.00 228/15.7.98
It was based on these details, the Commissioner (Appeals) observed in para 6 of his order that they have been paying duty after getting those details and he quoted one incidence where the duty has been paid after one year and four months. IN other words, there was no and legal basis about payment of duty on quarterly basis, as they were paying duty voluntarily after collecting details from their Depots. The Commissioner (Appeals) has rightly held that mandatory penalty under Section 11AC and penalty Rule 173Q of the CE Rules, 1944 is not imposable. He submitted that the judgment relied upon by the learned Commissioner (Appeals) and also by the Department is not relevant to the facts of the case since they have been paying duty voluntarily after collecting details from their 22 Depots spread all over India. He also submitted that the details which the preventive officers collected were already with them and they were planning to debit the duty immediately and it was a sheer co-incidence that the preventive officers happened to visit the unit on that particular date. The preventive officers would not have been able to got the details immediately but for the fact that the same were already available with the unit for paying the differential duty, which was a small amount of Rs. 91,064/- as against annual payment of duty of over Rs. 350 crores.
4. I have carefully considered the rival submissions and gone through the records. The conclusion arrived at by the Commissioner (Appeals) that the procedure of payment of differential duty after collecting details from the Depots and payment of duty voluntarily was well known to the department and a perusal of the details which have been extracted would indicate that duty has been paid not quarterly but even after the expiry of one year or so when they were getting the details from the Depots scattered all over India. I therefore, do not find any infirmity in the finding arrived at by the Commissioner (Appeals) and therefore I am of the considered opinion that the appeals filed by the Revenue deserves to be rejected. I, therefore, reject the Revenue appeal and confirm the order in appeal. Ordered accordingly.
(Dictated and pronounced in open Court)