Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise, Kolkata-Iv vs M/S. Jaypee Alloy & Casting Pvt. Ltd on 17 July, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Excise Appeal No. 148/2012
(Arising out of the Order-in-Appeal No. 101/Kol-IV/11 dated 21.12.2011 passed by the Commissioner of Central Excise (Appeals), Kolkata-IV)
For approval and signature of:
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
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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 :
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Commr. of Central Excise, Kolkata-IV
APPELLANT(S)
VERSUS
M/s. Jaypee Alloy & Casting Pvt. Ltd.
RESPONDENT(S)
APPEARANCE
Sri D.K. Nath, D.C. (A.R.)
FOR APPELLANTS
Sri B.N. Chattopadhyaya, Consultant
FOR THE RESPONDENTS
CORAM:
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
DATE OF HEARING & DECISION : 17.07.2012
ORDER NO.
Per SRI S.K. GAULE
Heard both sides.
2. Revenue filed this appeal against order in appeal No. 101/Kol-IV/11 dated 21.12.2011 whereby Ld. Commissioner (Appeal) has set aside the order passed by Lower Adjudicating Authority.
3. Briefly stated facts of the case are that the Respondents are engaged in the manufacture of M.S. Ingots. The Respondents had short paid duty of Rs.11,000/- during the month of June, 2006. They paid the said short amount in September, 2006 alongwith interest. However, a show cause notice was issued against them invoking provisions of Sub rule 3A of Rule 8 of Central Excise Rule, 2002 for demand of duty of Rs.24,09,230/- on the ground that since they have defaulted in payment of duty beyond 30 days from the due date t`he respondent were to pay duty consignment wise. The proposal for penalty under Section 11AC was also made. The Lower Adjudicating Authority confirmed the proposals in the show cause notice. Aggrieved by the same, the Respondent filed appeal before Ld. Commissioner (Appeal).
4. The contention of the Revenue is that the Respondent defaulted in payment of duty and the default was made good within 30 days. Therefore the Respondent was required to pay Excise duty on consignment basis without utilizing Cenvat Credit till the date auctioned amount including the interest thereon is paid. The contention is that the Respondent has not paid the duty through PLA therefore their liability for penalty in terms of Rule 25 of Central Excise Rule read with Section 11AC of Central Excise Act, 1944. Ld. Commissioner (Appeal) has discussed non applicability of Section 11AC. However, he did not mention anything of Rule 25 of Central Excise Rule, 2002. The contention is that the Lower Adjudicating authority has rightly imposed penalty under Section 11AC under Rule 25 of Central Excise Rules.
5. The Ld. Consultant appearing for the Respondent submitted that during the month of June, 2006 they made an error while working out the duty involved in this case in respect of Rs.15,28,177/- and by mistake they have made a short payment of duty of Rs.11,000/- due to clerical mistake. The said amount was paid in September, 2006 alongwith interest. The contention is that it was detected by them on their own and they have pointed out this to the Department and only thereafter the Department had initiated the proceedings.
6. We have considered the submissions and perused the record. Undisputedly Rs.11,000/- has been short paid due to clerical mistake which respondent had paid with interest in September, 2006 and the notice was issued in the month of December, 2006. After perusal of show cause notice, we find that Provisions of Section 11AC was not in voked in this case and we find that lower adjudicating authority has travelled beyond the scope of SCN. Although this aspect was not challenged by the Respondent. Ld. Commr. (Appeal) after relying upon the provisions of sub-section 2 (b) of Section 11AC provided that if the assessee pay the amount alongwith interest which has been short paid, there is no requirement of issuance of SCN. Relevant portion of Order in appeal is reproduced below:
6. It is also pointed out that in terms of sub-section (2B) of Section 11A of the Central Excise Act, 1944, if an assessee pays up an amount alongwith interest, which had been short paid, then there is no requirement of issuance of show cause notice. The proceedings get culminated there itself. The provisions of sub-rule (3A) of rule 8 cannot supersede the provisions of sub-section (2B) of Section 11A of the Central Excise Act, 1944
7. We find that Ld. Commr. (Appeal) has given clear and cogent finding and the appeal filed by the Revenue is bereft of any merit. Therefore,the Ld. Commr. (Appeals) order is upheld and Revenues appeal is dismissed.
(Dictated and pronounced in the open court) Sd/- 6/8/12 Sd/- 6/8/12 (DR. D.M. MISRA) (S.K. GAULE) JUDICIAL MEMBER TECHNICAL MEMBER k.b./-
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