M/S.Das Brothers (Unit-Ii) vs Cce-Kol-Iii

Appeal No.Ex.Ap.804/11 (Arising out of Order-in-Appeal No.217-218/KOL-III/2011 dated 08.07.2011 passed by the Commissioner(Appeals) of Central Excise, Appeal-I, Kolkata.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, 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 Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s.Das Brothers (Unit-II) Applicant (s)/Appellant (s) Vs.

CCE-KOL-III

Respondent (s)

Appearance:

Shri D.K.Saha, Consultant for the Appellant (s) Shri A.Roy, Supdt.(A.R.) for the Revenue (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial)

Date of Hearing/Decision :- 26.02.2015 Date of Pronouncement :- 26.02.2015

ORDER NO.FO/A/75126/2015

Per Dr. D.M. Misra.

1. This is an Appeal filed against Order-in-Appeal No. 217-218/KOL-III/2011 dated 08.07.2011 passed by the Commissioner(Appeal-I) of Central Excise, Kolkata.

2. At the outset Shri D.K.Saha, Ld.Consultant for the Appellant submits that during a visit by the officers of preventive unit of Kolkata Commissionerate on 28.11.2008 a vehicle intercepted was brought to the factory for verification. On verification of the invoices accompanying the vehicle and the goods loaded in the vehicle certain discrepancies were noticed. Consequently, the officers also carried out physical stock taking of the goods lying inside the factory premises. The officers found unaccounted excess quantity of finished goods lying inside the factory. Consequently, on completion of investigation, a show cause notice was issued proposing confiscation and also recovery of duty against the goods cleared clandestinely.

3. The Ld.Asstt.Commissioner confirmed the demand and imposed penalty under Section 11AC of Central Excise Act, 1944 read with Rule 25, of Central Excise Rules, 2002 directed confiscation of the goods and vehicle carrying the offending goods. Aggrieved by the said order, the Appellant as well as the owner of the vehicle filed Appeals before the Ld.Commissioner(Appeals). The Ld.Commissioner(Appeals) dropped the proceeding against the vehicle owner, however, confirmed the penalty imposed in the adjudication order against the Appellant. Hence, the present Appeal.

4. The Ld.Consultant further submits that even though in their grounds of Appeal they have questioned the issue of confiscation of the goods, however, for the present purpose the appellant are not interested to press the validity of confiscation. He has confined his argument only to the aspect of penalty imposed under Section 11AC of Central Excise Act, 1944 read with Rule 25 of Central Excise Rules. He has submitted that the Ld.Commissioner(Appeals) has failed to take cognizance of their submission that even though the penalty had been imposed under Section 11AC, however, no option was given to them as laid down in the said statute to pay 25% of such penalty on fulfillment of such conditions as laid down therein. Such an option ought to be allowed to them in view of the judgement of the Honble Gujarat High Court in the case of Commr. Of Central Excise & Customs, Surat-I vs. Harish Silk Mills  2010(255)ELT 393(Guj.).

5. The Ld.A.R. for the Revenue reiterated the findings of the Ld.Commissioner(Appeals). He submits that the Ld.Commissioner(Appeals) in the impugned order had already remanded the matter to the adjudicating authority for verification of the plea of excess payment of duty and the same is yet t be quantified. He has no objection in remanding the case to the adjudicating authority.

6. I find that the only issue now raised by the Appellant in the present Appeal relates to their eligibility to pay 25% of the total penalty amount imposed under section 11AC of Central Excise Act, 1944, an option not extended to them even though specifically laid down under the said provision in the order of the adjudicating authority and also not considered by the Ld.Commissioner(Appeals). I find force in the argument of the Ld.Consultant in view of judgement of the Honble Gujarat High Court in the case Commr. Of Central Excise & Customs, Surat-I vs. Harish Silk Mills (supra). Therefore, while examining the issue of excess payment of duty, the adjudicating authority should also extend the option to the Appellant for payment of 25% of the penalty as prescribed under section 11AC of Central Excise Act, 1944 on fulfillment of conditions prescribed thereunder. The Ld.Commissioner(Appeals)s order to this extent is modified and the matter remanded to the adjudicating authority for deciding the case in the light of above observations. Appeal disposed of as above.

(Pronounced and dictated in the open court.)

SD/

(D.M.MISRA) MEMBER(JUDICIAL) sm

4 Appeal No.Ex.Ap.804/11