M/S.Annavaram Concrete (P) Ltd vs Cce, Lucknow

[Arising out of Order-in-Appeal No.87-CE/LKO/2013 dated 21.12.2013 passed by the Commissioner (Appeals), C.Ex., Lucknow]

For approval and signature:

HONBLE MR. S.K. MOHANTY, 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?

__________________________________________________

M/s.Annavaram Concrete (P) Ltd. Appellant

Vs.

CCE, Lucknow  Respondent

Present for the Appellant :Shri T.K.Srivastava, Advocate

Present for the Respondent: Shri M.S. Negi, DR

Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)

Date of Hearing/Decision: 18.06.2015

FINAL ORDER NO. 53293/2015

PER: S.K. MOHANTY

This appeal is directed against the impugned order dated 21st December, 2013 passed by the Commissioner (Appeals), Central Excise, Lucknow.

2. The brief facts of the case are that the appellant is engaged in the manufacture of PSC sleepers. During the course of investigation by the Preventive Officers of Central Excise Department on 17.08.2010 in the factory of the appellant, it was detected that there was shortage of 2,600 nos. of PSC sleepers. In the statement recorded pursuant to summon, the authorized signatory of the appellant submitted that due to paucity of storage place, the goods were stored outside the factory. The duty attributable to such shortage quantity was paid by the appellant during the course of the investigation on the same day. The investigation by the central excise officers culminated in the adjudication order dated 07.09.2012, wherein Rs.3,64,208/- was confirmed as Central Excise Duty and the amount paid by the appellant was ordered for appropriation. Besides, equal amount of penalty under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944 was also imposed. The adjudication order was upheld by the Commissioner (Appeals) vide the impugned order dated 21.12.2013. Hence, this present appeal before the Tribunal.

3. Heard the ld. Counsel for both sides and perused the records.

4. It is an admitted fact on record that before issuance of the show cause notice, the entire duty liability confirmed in the adjudication order was deposited by the appellant. Since, the Central excise duty attributable to the shortage quantity of the finished goods has been paid by the appellant on the basis of its own ascertainment and nothing further is payable on account of duty or interest, I am of the considered view that the appellant should get the benefit of sub-section (2B) of Section 11A of the Central Excise Act, 1944. According to the said statutory provisions, there is no requirement of issuance of any show cause notice or for adjudication of the matter for confirmation of the penalty amount alone. The statement recorded from the appellant that due to storage problem, the finished goods were kept outside the factory was not refuted either by the preventive officers or the adjudicating authority. Hence, such facts prove beyond any doubt that there was no element of suppression, wilful misstatement etc. With intent to evade payment of Central Excise Duty. Thus, in view of the above statutory provisions, penalty imposed on the appellant is not legal and proper.

5. In view of above, I do not find any merits in the impugned order, and thus, the same is set aside and the appeal is allowed in favour of the appellant.

(Dictated and pronounced in the open Court)

(S.K. MOHANTY)

MEMBER (JUDICIAL)

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