Allfabs vs Commissioner Of Customs, Central ...

[Arising out of Order-in-Appeal No. 51/2010 dated 04/10/2010 passed by Commissioner of Customs & Central Excise (Appeals) Guntur]

For approval and signature:

HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 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

ALLFABS ENIKEPADU, VIA RAMAVARAPPADU, VIJAYAWADA, ANDHRA PRADESH 521108 Appellant(s)

Versus

Commissioner of Customs, Central Excise and Service Tax GUNTUR P.B.NO. 331...C.R.BUILDING, KANNAVARI THOTA, GUNTUR, - 520004 ANDHRA PRADESH Respondent(s)

Appearance:

Mr. B. Venugopal, Adv SWAMY ASSOCIATES G-8, FORTUNA ICON APARTMENTS, JODIDHAR ASWATHAPPA FARM, BEHIND NAGARJUNA, SAHAKAR NAGAR, BANGALORE - 560092 KARNATAKA For the Appellant

Mr. Pakshi Rajan, A.R. For the Respondent

Date of Hearing: 10/07/2015

Date of Decision: 10/07/2015

CORAM:

HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

Final Order No. 21691 / 2015

Per : ARCHANA WADHWA

After hearing both sides, I find that the duty of Rs 1,70,999/- stands confirmed against the appellant in terms of the provisions of Section 11D of Central Excise Act and a penalty of Rs. 5000/- stands imposed under Rule 27 of the Central Excise Rules 2002.

2. As per the facts on record, the appellant is engaged in the manufacture of different types of cast iron articles. They are also supplying the said raw materials to different municipalities and panchayat divisions under rural water scheme. As a result of investigations at the end of the recipient, it was found that the said recipients were making certain payments of central excise duty to the appellant in respect of sale transactions, which were not being deposited with the department. A search was also conducted at the appellants premises on 14.03.2006 and certain documents were recovered. Statements of their authorized representatives was also recorded.

3. Subsequently, data/invoices were obtained from the executive engineer, Tirupathi and the same was compared with the statutory records. It turned out that the details are not tallying. The appellant who had recovered the duty element from their customers had not deposited the same with the department. Accordingly, proceedings were initiated against them for recovery of the amount in terms of Section 11D by way of issuance of a show-cause notice. The said notice culminated into an order passed by the original adjudicating authority and upheld by Commissioner (Appeals).

4. Learned advocate appearing for the appellant submits that the entire case is based upon the information provided by the Govt of Andhra Pradesh, Public Health and Municipal Engineering Department. He submits that subsequently they have procured a letter from the Executive Engineer, Public Health Tirupathi on 10.11.2010 giving details of the excise duty as also the sales tax paid by them to the appellant. The Revenue has wrongly adopted the data of sales tax as data of excise duty recovered by the appellant and not deposited with the Revenue. However, he fairly agrees that the said letter dated 16.11.2010 is subsequent to the impugned order-in-appeal dated 4.10.2010 and as such does not stand considered by the lower authorities. By drawing my attention to some of the entries in the said letter to the annexures of the show-cause notice, he establishes that the sales tax amount stand taken as excise duty.

5. I find that the said letter dated 16.11.2010 is relevant and crucial evidence as regards the fact as to whether the appellants have collected the excise duty or not from their customers. Inasmuch as the said letter was not available at the time of either original adjudication or the first appellate decision, I deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for examining the said letter and verifying the appellants claim of not having recovered the excess excise duty from their customers. Appeal is thus allowed by way of remand.

(Order pronounced in open court)

ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

pnr....

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