C.C.E. & S.T.-Ghaziabad vs Shri S K Tomar

[Arising out of Order-in-Appeal No. GZB-EXCUS-000-APP-212 & 213-13-14 dated 16.01.2014 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Ghaziabad].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

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 authorities?

C.C.E. & S.T.-Ghaziabad .Appellants

Vs.

Shri Jagdamba Prashad Dubey,

Shri J S Tomar,

SHri S K Tomar .Respondent

.

Appearance:

Shri G.R. Singh, DR for the Appellant

Shri R.L. Thapliyal, Consultant for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 30.06.2015

FINAL ORDER NO. 52104-52106/2015-EX(SM)

Per Ashok Jindal:

Revenue is in appeal against the impugned order for dropping the penalty against the respondent. The respondents have filed Cross Objection.

2. The Ld. AR submits that in this case the importer M/s. Radha Govind Impex filed the two bills Of Entry no. 006165 dated 06.09.2010 and no. 006306 dated 09.09.2010, respectively, for importation of Telescope Channel and Dining Sets. The Bill of Entry were filed by Shri Jagdamba Prasad Dubey, G card holder of the CHA. The Bill of Entry no. 006165 was directed to be thorough examination. The departmental officers, namely Shri JS Tomar, Superintendent, and Shri S K Tomar, Inspector, were deputed for that job. They filed the report that goods are in order but on 15.09.2010 goods were intercepted by DRI, who examined the goods thoroughly and found that declared quantity of goods is less than actually found and value of goods have been declared on lower side . In these set of facts, the show cause notice was issued to the importer as well as respondents before me. Matter was adjudicated. Demand of differential duty was confirmed against the importer. Penalty was also imposed on the importer. The proposed penalties in the show cause notice were dropped by the Adjudicating Authority against the respondents. The appeals by the Revenue before the Ld. Commissioner (A) against the respondents were also dismissed. Aggrieved from the said orders Revenue is before me for imposition of penalties on the respondents.

3. The Ld. AR submits that in this case the lower authorities has dropped the penalties on the respondent only due to the reason that in show cause notice there is no specific charge of omission and commission against the respondents which is factually incorrect. In fact, in the show cause notice after recording statement of the respondents framed the charges and it was proposed for imposition of penalty. Both the lower authorities fell in error holding that the respondents were not negligent. Therefore, impugned orders qua dropping penalties against the respondents be set aside.

4. On the other hand Ld. Consultant appearing on behalf of the respondents submits that as per the CBEC Circular no. F.No.390/MISC/163/2010-JC dated 17.08.2010, the monetary limits were prescribed by CBEC for filing the appeal before this Tribunal and as per the said circular the appeal is not required to be filed where amount in dispute is less that Rs.5 lakhs. In this case penalties on all the respondents have not been imposed. Therefore, following the CBEC circular dated 17.08.2011 the appeals are required to be dismissed as held by the Honble High Court of Madras in the case of India Cement Ltd. Vs. CCE Salem-2014 (302) ELT 342 (Madras), the Honble High Court of Karnataka in the case of Mico Ltd. Vs. CCE Bangalore-2012 (281) ELT 680 (Kar.) and the Honble High Court of Gujarat in the case of Macro Polymers Pvt. Ltd. Vs. CCE Ahmedabad-2014 (306) ELT 172 (Guj.) and Pharmanza Herbal Pvt. Ltd. Vs. CCE Vadodara-2014 (306) ELT 153 (Guj.). Therefore, appeals are not maintainable.

5. Heard the parties. Considered the submission.

6. In this case, after going through the facts, I find that as per the CBEC Circular dated 17.08.2011, which clearly states that no appeal shall be filed in the Tribunal where the amount in litigation is less than Rs.5 lakhs. Admittedly, in these appeals both the lower authorities has refrained from imposition of penalty on the respondents. In these circumstances, I hold that Revenue was not required to file appeals against the respondent as per the decision of Honble High Court of Madras in the case of India Cement Ltd. Vs. CCE Salem-2014 (302) ELT 342 (Madras), the Honble High Court of Karnataka in the case of Mico Ltd. Vs. CCE Bangalore-2012 (281) ELT 680 (Kar.) and the Honble High Court of Gujarat in the case of Macro Polymers Pvt. Ltd. Vs. CCE Ahmedabad-2014 (306) ELT 172 (Guj.) and Pharmanza Herbal Pvt. Ltd. Vs. CCE Vadodara-2014 (306) ELT 153 (Guj.).

7. Therefore, I dismiss the appeals filed by the Revenue in the light of the CBEC Circular dated 17.08.2011. The cross objections are also disposed off in above terms.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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C/51973-51975/2014-CU(SM)