Custom, Excise & Service Tax Tribunal
Intech Surface Casting Pvt. Ltd vs Commissioner Of Central Excise, Pune.- ... on 15 November, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI Application No. E/S/762/2010 in Appeal No. E/631/2010 (Arising out of Order-in-Appeal No. PIII/VM/02/2010 dated 04/01/2010 passed by the Commissioner (Appeals) Central Excise Pune-III.) For approval and signature: Honble Shri Ashok Jindal, Member (Judicial) ============================================================
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
============================================================= Intech Surface Casting Pvt. Ltd.
:
Appellants VS Commissioner of Central Excise, Pune.- III Respondents Appearance Shri Sagar Kulkarni, Advocate for Appellants Shri V.K. Singh, SDR Authorized Representative CORAM:
Shri Ashok Jindal, Member (Judicial) Date of decision : 15/11/2010 ORDER NO.
Per : Ashok Jindal, Member (Judicial) In the earlier round of litigation the matter was remanded back to the Commissioner (Appeals) to quantify the amount of penalty.
2. In remand proceedings the Commissioner (Appeals) has confirmed the penalty equal to the duty confirmed in the adjudication proceedings. Aggrieved from the said quantification of penalty the appellants are before me.
3. The matter is listed for disposal of stay of the penalty, after hearing at length, it was found that the appeal can be disposed of at this stage, as the issue involved is of narrow compass. Accordingly, after waiving the condition of pre-deposit of the penalty, the appeal is taken up for disposal as agreed by both the sides.
4. The Commissioner (Appeals) in the remand proceedings has quantified the penalty equal to the duty confirmed. As the appellants have already paid the duty before adjudication of the case, the appellant prayed that in that event, the penalty be reduced to 25% of the duty confirmed as per proviso 1 & 2 of Section 11AC of the Central Excise Act, 1944.
5. On the other hand, the learned DR reiterated the impugned order.
6. Heard and considered.
7. I have gone through the impugned order and the adjudication order. In the adjudication order although the demand was confirmed against the appellant but no penalty was imposed on them in the facts and circumstances of the case. The Revenue filed appeal before the Commissioner (Appeals) for imposition of penalty who imposed penalty but failed to quantify the same, this Tribunal vide its order No.A/455/09/SMB/IV dated 6.8.2009 remanded the matter back to the Commissioner (Appeals) to quantify the penalty who confirmed the penalty equivalent to the duty confirmed in adjudication, but he failed to give the option to the appellant to pay 25% of duty confirmed as penalty as per proviso 1 & 2 of Section 11AC of the Central Excise Act, 1944. Hence, the impugned order is modified to the extent that the appellants are given an option to pay 25% of duty confirmed as penalty as per the proviso 1 & 2 of Section 11AC of the Central Excise Act, 1944 within 30 days of the communication of this order as held by the Honble Delhi High Court in the case of M/s. K.P. Pouches (P) Ltd. Vs. Union of India reported in 2008 (228) ELT 31 (Del.), failing which the appellant shall be liable to pay 100% duty confirmed as penalty.
8. With these observations, the stay application as well as appeal are disposed of.
(Dictated in court) (Ashok Jindal) Member (Judicial) Sm 3