Custom, Excise & Service Tax Tribunal
M/S Aksh Optifibre Ltd vs C.C.E., Jaipur on 15 January, 2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-III Date of hearing/decision:15.1.2010 Central Excise Appeal No.455 of 2008-SM Arising out of the order in appeal No.339(RKS) CE/JPR-I/2007 dated 26.11.2007 passed by the Commissioner (Appeals), Central Excise , Jaipur. For Approval and Signature: Honble Shri M. Veeraiyan, Member (Technical) 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? yes 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 Aksh Optifibre Ltd. Appellants Vs. C.C.E., Jaipur Respondent
Appearance:
Shri A. Gupta, Company Secretary with Shri Manish Saharan, Advocate for the appellants Shri Mahesh Rustogi, Authorized Departmental Representative (SDR) for the Revenue Coram: Honble Shri M. Veeraiyan, Member (Technical) Oral Order No.____________________ Per M. Veeraiyan:
This is an appeal by the party against the order of the Commissioner (Appeals) No. 339(RKS) CE/JPR-I/2007 dated 26.11.2007. The original authority confirmed the demand of duty of Rs.28,939/- along with interest in respect of goods cleared to another unit of the appellant company on the issue of incorrect adoption of valuation. However, he did not impose penalty under Section 11AC. On review and on filing of appeal before the Commissioner (Appeals), Commissioner (Appeals) imposed penalty of Rs.28,939/- under Section 11AC.
2. Learned Advocate for the appellants submits that it was not a case of clandestine removal; it was a case of differential duty arising out of incorrect determination of value which was due to misunderstanding.; he also submits that whatever duty was paid by the appellants was available as credit to the recipient unit which is also that of the appellant. Therefore, there is no intention to evade duty, and therefore, penalty under Section 11AC is not justified.
3. Learned SDR reiterates the finding and reasoning of the Commissioner (Appeals).
4. I find that in this case, the dispute involved relates to adoption of value relating to clearances made for captive consumption by another unit of the appellant company. Undisputedly, the recipient unit of the appellant is eligible for the credit of duty paid by the appellant. Under these circumstances, the intention to evade is clearly absent. The original authority also has refrained from imposing penalty.
5. In view of the above, I do not find any justification for sustaining the penalty imposed by the Commissioner (Appeals). The appeal is, therefore, allowed with consequential relief as per law.
(M. Veeraiyan) Member (Technical) scd/ 3