Empee Offset Pvt. Ltd vs Commissioner Of Central Excise, Pune-V

[Arising out of Order-in- Appeal No. PI/VSK/266/2009 dated 23/12/2009 passed by the Commissioner (Appeals), Central Excise, Pune I]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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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 : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

EMPEE OFFSET PVT. LTD. : Appellants

VS

Commissioner of Central Excise, Pune-V : Respondent

Appearance

None for the Appellants Shri. N.N. Prabhudesai, Superintendent(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 15/4/2015 Date of decision 15/4/2015

ORDER NO.

Per : Ramesh Nair

The appeal is directed against Order-in- Appeal No. PI/ VSK/266 /2009 dated 23/12/2009 passed by the Commissioner (Appeals), Central Excise, PuneI, wherein the Commissioner (Appeals) reduced penalty from Rs. 4,70,774/- to Rs. 50,000/-. The fact of the case is that the appellant have defaulted duty payment for the month of May to September 2007. However the said duty was paid on 27/8/2010 and 15/10/2007 voluntarily alongwith interest without contesting the said duty and interest. A show cause notice was issued on 30/9/2008 and in the adjudication of the said show cause notice in addition to confirmation of duty and interest, a penalty of equivalent amount of duty was also imposed. Appellant without contesting the demand of duty, interest filed appeal for waiver of penalty of Rs. 4,70,774/-before the Commissioner(Appeals), who in impugned order reduced the penalty to 50,000/-. Being aggrieved by the said impugned order the appellant is before me.

2. When the matter was called upon no one appeared on behalf of the appellant. On perusal of records of hearing, I find that this matter was earlier fixed for hearing on 4/12/2014, 30/1/2015, 13/3/2015. I also find that there is no request of adjournment on behalf of the appellant. Therefore I take up the matter for disposal. On going through the grounds of appeal the appellant submitted that duty for the period for May 2007-Sep 2007 though not paid on the due date, the same was paid suo-moto alongwith interest during the period 27/8/2010 and 15/10/2007. The appellant submits as provided under 11 A(2B) if the duty alongwith interest is paid suo-moto without contest the Central Excise officer shall not to serve show cause notice.

3. On the other hand, Shri. N.N. Prabhudesai, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that Ld. Commissioner(Appeals) has taken very lenient view and reduced the penalty, therefore same be upheld.

4. On careful consideration of the grounds of appeal and submission made by Ld. A.R., I find that this is a case of delay in payment of excise duty. However, the appellant on their own paid excise duty though belatedly but alongwith interest thereon. The appellants plea that their case is covered Section11A(2B). I have read the said proviso which is reproduced below:-

SECTION 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.

.

(1A) (2A).

(2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer before service of notice on him under sub-Section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section(1) in respect of the duty so paid.

From the aforesaid statutory provision it is clear that if the assesee paid the duty alongwith interest on the their own ascertainment, no show cause notice shall be issued by Central Excise officers. In the present case the appellant on their own, voluntarily paid the duty and interest admittedly. Therefore, in terms of Section 11A(2B) no show cause notice should have been issued, if it is so, then question of imposition of any penalty does not arise. In view of statutory provision and fact of this case, I am of the considered view that the appellant is legally entitled for the immunity provided under Section 11A(2B) therefore no penalty is imposable on them. I, therefore allow the appeal of the appellant.

(Operative part pronounced in court)

Ramesh Nair Member (Judicial)

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