M/S Ats Business Service Pvt. Ltd vs C.C. C.E. & S.T. Noida

[Arising out of Order-In-Appeal No. NOI/EXCUS/000/APPP/242/13-14 dated: 29.11.2013 passed by CCE Noida]

For approval and signature:

Hon'ble 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 Ats Business Service Pvt. Ltd. ...Appellant

Vs.

C.C. C.E. & S.T.  Noida Respondent

Appearance:

Mr. Prabhat Kumar, Advocate for the Appellants

Mr. M. S. Negi, DR for the Respondent

CORAM:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

Date of Hearing.29.06.2015

FINAL ORDER NO. 54101 /2015

Per S. K. Mohanty (for the Bench):

This appeal is directed against the impugned order dated 29.11.2013 passed by the Commissioner (Appeals), Central Excise, Noida, upholding penalty imposed under Rule 25 of the Central Excise Rules, 2002 in the Adjudication Order.

2. The brief facts of the case are that during course of inspection of the factory premises of appellant on 24.11.2011, the Central Excise Officers detected that daily stock account was not available in the factory. For non-availability of such record, the Central Excise Officers seized the goods and subsequently issued the SCN dated 23.05.2011, seeking confiscation of the goods and imposition of penalty under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. The SCN was adjudicated in confiscating the goods and also imposing penalty of Rs. 43,875/- vide Order-in-Original dated 28.06.2013. Being aggrieved with the said order, the appellant had preferred appeal before the Commissioner (Appeals), which was disposed of vide impugned order dated 29.11.2013 in confirming the penalty imposed in the adjudication order. Hence, the present appeal is before this Tribunal.

3. The Ld. Advocate Sh. Prabhat Kumar, appearing for the appellant submits that the allegation of the Department that no records as contemplated under Rule 10 of the Central Excise Rules, has not been maintained by the appellant is factually incorrect inasmuch as the appellant maintained the daily production account and entered the manufacturing particulars therein. According to him, on the date of visit of the Central Excise Officers, the daily stock account was available in the office of Chartered Accountant who took the said register for the purpose of preparation VAT returns. He further submits that maintenance of records by the appellant has also been accepted by the Commissioner (Appeals) in the impugned order at paragraph 4.3. It has been observed that the stock register was produced before the Central Excise Officers on the next date. According to the Ld. Advocate, since the appellant was maintaining the daily stock account, confiscation of goods and imposition of penalty under Rule 25, read with Section 11AC of the Central Excise Act, 1944, by both the authorities below are not justified. He further referred to impugned order at page 5 paragraph 3.2, wherein the Commissioner (Appeals) has categorically recorded that there is no clandestine clearance of the goods from the factory of the appellant. To substantiate his stand that penalty cannot be imposed in the facts of this case, the Ld. Advocate has relied on the judgment of Hon'ble High Court in the case of CCE vs Saurasthra Cement Ltd, [2010 (260) ELT 71 (Guj)] and Supreme Industries Ltd. Vs CESTAT, New Delhi, [2007 (214) ELT 187 (MP)].

3. Per Contra, Sh. M S Negi, the Ld. DR appearing for the Revenue- Respondent reiterated the findings recorded in the impugned order and further submits that imposition of penalty and confiscation of goods under Rule 25 of the Central Excise Rules, 2002 is legal and proper.

4. I have heard the Counsel for both the sides and perused the records.

5. It is seen that there is no allegation of clandestine removal of goods from the factory by the appellant. The only allegation leveled against the appellant by the authorities below is that daily stock account as provided under Rule 10 of the Central Excise Rules, 2002 has not been maintained by the appellant. Since the goods have not been removed from the factory and in view of the fact that the stock accounts have been maintained, which at the material time, was available with the Chartered Accountant of the appellant company, the allegation leveled against the assessee, justifying confiscation of goods and imposition of penalty are not legal and proper. I find support from the above referred judgments cited by the Ld. Counsel for the appellant that in absence of fraud, collusion, suppression with intent to evade payment of duty, penalty cannot be imposed under Rule 25 ibid.

7. In view of the above, confiscation of goods and imposition of penalty under Rule 25 of the Central Excise Rules, 2002, read with Section 11AC of the Central Excise Act, 1944, are not in conformity with the statutory provisions. Thus the impugned order is devoid of any merits, and accordingly, the same is set aside and the appeal is allowed in favour of the appellant.

(Dictated and pronounced in open court)

(S.K. Mohanty)

Member(Judicial)

Neha

2 | Page

E/52205/2014