Custom, Excise & Service Tax Tribunal
Cce, Mangalore vs M/S. Ramson Rigid Pvc Pipes on 5 February, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench SMB
Court I
Date of Hearing: 05/02/2010
Date of decision:05/02/2010
Appeal No.E/856/08; E/CO/36/09
(Arising out of Order-in-Appeal No.155/2008 dt. 22/9/2008
passed by CCE(Appeals), Mangalore)
For approval and signature:
Honble Mr. P.Karthikeyan, 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?
Yes
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
CCE, Mangalore
..Appellant(s)
Vs.
M/s. Ramson Rigid PVC Pipes
Respondent(s)
Appearance Mr.M.M.Ravi Rajendran, JDR for the Revenue.
None for the respondent.
Coram:
Honble Mr. P.Karthikeyan, Member(Technical) FINAL ORDER No._______________________2010 Per P.Karthikeyan This is an appeal filed by the Revenue seeking to restore equal amount of penalty imposed by the original authority in a case of the respondents failure to make monthly payments of duty from PLA as prescribed in Rule 8(3) of the Central Excise Rules, 2002 during October, 2006 to December, 2006. The respondents made good the failure and paid the duty from PLA and applicable interest before issue of the show cause notice basic to the proceedings. After due process of law, original authority confirmed the duty liability of Rs.4,27,908/-against the assessee for the period 10/2006 to 12/2006 and appropriated the duty along with applicable interest already paid by the respondent. He imposed equal amount of penalty u/s 11AC of the Central Excise Act. Vide the impugned order, the Commissioner(Appeals) modified the order of the original authority by reducing the penalty to Rs.25,000/-. In the appeal filed by the Revenue, the ground raised is that under Section 11AC, penalty equal to the duty has to be imposed. Therefore, in the instant case, the Commissioner(Appeals) has no discretion to reduce the penalty. The Revenue also relied on the decision of the Apex court in the case of UOI Vs. Dharamendra Textile Processors [2008(231) ELT 3(SC)] where the Apex court had observed that the legislative intent in enacting Section 11AC was to require the authorities to impose penalty equal to the duty evaded and that the authorities had no discretion to waive penalty liable u/s 11AC.
2. I have heard ld. JDR for the Revenue. The respondents are not represented. In the instant case, the respondents had cleared excisable goods for a couple of months by debiting the duty due from the cenvat account instead of from PLA. The respondents paid the duty due along with interest for the delay in such payments subsequently. This was before the issue of show cause notice. Since the respondents had contravened provisions of Rule 8(3), it deserved a penalty for the infraction committed. Rule 25 provides for confiscation and penalty where an assessee clears excisable goods contravening provisions of Central Excise Rules or notifications issued under the Rules. The rule provides for confiscation and penalty in various situations. Rule 25(a) covers the clearances of excisable goods in contravention of the provisions of any Rule or notification. The instant case is covered by Rule 25(a). In case of the infractions enumerated in the Rule 25, an assessee shall be liable to penalty not exceeding the duty on the excisable goods in respect of which contravention mentioned in clause (a) has been committed or Rs.2000/- whichever is lesser. In the instant case, therefore, the competent authority could have imposed penalty equal to the duty not paid or a lower penalty not less than Rs.2000/- as per Rule 25(a). I find that in the instant case, there was only a delay in payment of duty on the part of the respondents. It had no intention to evade payment of duty due. It had also discharged the duty liability alongwith applicable interest before the issue of show cause notice. In the circumstances, I find that a penalty of Rs.25,000/- imposed by the Commissioner(Appeals) is fair and appropriate. The appeal is rejected.
(Pronounced and dictated in open court) (P.KARTHIKEYAN) Member (Technical) NR 4