Commissioner Of Central Excise And ... vs Starflex Laminators (P) Ltd
- CitationAppeal No. 29/2007
Ratio decidendi
The rule this decision rests on
Where an assessee pays the duty short-levied before the issuance of a show-cause notice, and the dispute over the inclusion of the disputed expense in the assessable value is contentious and arguable without any mala fide intention on the assessee's part, the assessee cannot be held liable to penalty or to a suppression-based extended period, and the Commissioner (Appeals) is correct not to impose interest or penalty.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No. 29/2007 dated 22/01/2007 passed by the Commissioner of Central Excise, Mangalore]
For approval and signature:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL 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
Commissioner of Central Excise and Service Tax, Mangalore 7th Floor, Trade Centre, Bunts Hostel Road, Mangalore 575 003 Karnataka Appellant(s)
Versus Starflex Laminators (P) Ltd. Plot No. B-155, Industrial Area, Baikampady, Mangalore 575 011 Respondent(s)
Appearance:
Mr. S. Teli, AR For the Appellant
Ms Jyothi M Moraeli, Advocate T. Rajeswara Sastry & Associates Advocates #48, 11th Main, Banashankari 2nd Stage, Bangalore 560 070 For the Respondent
Date of Hearing: 13/02/2015 Date of Decision: 13/02/2015 CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER
Final Order No. 20322 / 2015
Per: ARCHANA WADHWA
Revenue is aggrieved with the impugned order of Commissioner (Appeals) vide which, while upholding the demand of duty, he has neither confirmed the interest nor imposed any penalty.
2. After hearing both the sides, I find that the dispute relates to the addition of expenses incurred by the respondent on the cylinder making charges used in the manufacture of Flexible Packaging Materials. It is seen from the records that though the respondents were contending that such addition is not required inasmuch as the same is an expense and the duty was required to be discharged on the value of the goods being sold by them. However as a good citizen they deposited the duty before the issuance of the show-cause notice.
3. Commissioner (Appeals) has held that in such a scenario, no interest or penal liability would arise against the assessee.
4. On the other hand Revenues contention is that inasmuch as there was suppression on the part of the assessee as the said short payment was detected on account of audit objection, a penal provision has to be invoked against them.
5. I find that the issue involved was contentious and arguable in nature. The same does not reflect upon any malafide intention of the respondent. The respondents have discharged the amount in question well before the issuance of the show-cause notice, in which case, it cannot be held that there was any malafide on their part requiring even issuance of the show-cause notice. As such I find no infirmity in the impugned order of Commissioner (Appeals). Revenues appeal is accordingly rejected.
(Order pronounced in open court)
(ARCHANA WADHWA) JUDICIAL MEMBER
iss
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