Custom, Excise & Service Tax Tribunal
Batliboi Ltd vs Commissioner Of Central Excise, ... on 2 March, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal Nos.E/18/2004 & E/19/2004
[Arising out of Order-in-Appeal No.102/03 (Pondicherry) (D) dated 9.7.2003 and OIA No.103/03 (Pondicherry) (D) dt. 9.7.2003 passed by the Commissioner of Central Excise (Appeals), Chennai]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
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 the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Batliboi Ltd.
Appellant/s
Versus
Commissioner of Central Excise, Pondicherry
Respondent/s
Appearance :
Shri M.Saravanan, Consultant Shri T.H.Rao, SDR For the Appellant/s For the Respondent/s CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Honble Dr. Chittaranjan Satapathy, Technical Member Date of hearing : 2.3.2010 Date of decision : 2.3.2010 Final Order No.____________ Per Jyoti Balasundaram The appellants herein are engaged in the manufacture of diesel generating sets. They had cleared control panels on various dates by discharging duty @ 13% advalorem instead of adopting the correct rate of duty at 18% advalorem payable on the goods. The consequential differential duty of Rs.1,30,469/- was therefore required to be paid by the assessees. Further, they had not paid appropriate duty of Rs.1,60,000/- being the invoice value of 180 KV Alternator cleared under invoice dt. 23.4.97 to M/s.Prime Plast, Vijayamangalam, of Rs.20,800/- out of which only Rs.4,545/- was paid as duty and therefore differential duty of Rs.16,255/- was also required to be paid. Show-cause notice raising differential duty demand of Rs.1,46,724/- (Rs.1,30,469 + Rs.16,255) involved in the clearance of control panel and alternator was issued. The notice proposed penal action against the assessees. The notice was adjudicated by the Asst. Commissioner who dropped the demand but imposed penalty of Rs.2000/- vide Order-in-Original No.37/98 dt. 27.3.98 ; the Revenue preferred appeal before the Commissioner (Appeals) who vide his Order-in-Appeal No.102/03 dt. 9.7.03 set aside the adjudication order and allowed the appeal of the Revenue. This has given rise to Appeal No.E/18/04.
2. Appeal No.E/19/04 involves the issue of reversal of credit of Rs.99,300/- on two control panels of 1250 KV cleared to M/s.Lakshmi Machine Works, Coimbatore an amount of Rs.90,000/- alone was paid while credit of Rs.1,89,300/- was taken, and this resulted in a notice for reversal of credit of the balance amount of Rs.99,300/-. The notice was adjudicated by the Asst. Commissioner who dropped the proceedings for reversal, however imposed penalty of Rs.1000/-; Commissioner (Appeals) accepted the contention of the Revenue that the assessees had made short-payment of Rs.99,300/- as per the relevant Rule namely Rule 57F (1) (ii) and hence allowed the Revenues appeal. This has given rise to Appeal No.E/19/04.
3. We have heard both sides. We first take up Appeal No.E/18/04 for decision. We find that the Commissioner (Appeals) has passed a non-speaking order. His findings are reproduced herein below :-
The issue in a nut shell is incorrect adoption of duty and demand of differential duty. The demand of differential duty is Rs.1,46,724/-. Instead of paying 18% duty, the respondents paid only 13%. Revenue contention appears correct. He has also not considered the cross objections filed by the assessees before him. We therefore set aside the impugned order leading to appeal No.E/18/2004 and remit the case for fresh decision to the lower appellate authority who shall pass a speaking order after extending a reasonable opportunity to the assessees of being heard in their defence and raising all pleas. Appeal No.E/18/2004 is thus allowed by way of remand.
4. In the next case, we see no reason to interfere with the order of the Commissioner (Appeals) directing reversal of credit. However, in the light of the Larger Bench decision in Commissioner of C.Ex., Vadodara Vs Asian Brown Boveri Ltd. [2000 (120) ELT 228, the assesses are required to reverse an amount equal to the credit taken. We uphold the impugned order and dismiss appeal No.E/19/2004.
(Dictated and pronounced in open court)
(Dr.CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE-PRESIDENT
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