M/S Gujarat Poly Bond Pvt Ltd vs Commissioners Of Central Excise

[ Arising out of OIA-SKSS/305-306/DMN/VAPI-I/2010-11 dtd 27.12.2010 Passed by Commissioners of Central Excise, Customs and Service Tax-DAMAN ]

1. M/s Gujarat Poly Bond Pvt Ltd - Appellant(s)

2. Shri Vithalbhai Babaria

Vs

Commissioners of Central Excise, Customs and Service Tax-DAMAN - Respondent (s)

Represented by :

For Assessee : Shri Rahul Gajera, Advocate For Revenue : Shri L Patra, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial)

1 Whether Press Reporter 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 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

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial)

Date of Hearing / Decision : 15/5/2015

ORDER No. A/10950-10951/2015 dtd 15/5/2015

Per : Mr.P.K. Das,

These appeals are arising out of a common order and, therefore, both are taken up together for disposal.

2. The relevant facts of the case, in brief, are that the appellant No.1 was engaged in the manufacture of Polymer GK Liquid and Powder etc. On 28th June, 1997 the Central Excise Officers visited the appellants factory. During the investigation the said officers recovered documents from the security guard. A show cause notice dtd 18.1.2000 was issued proposing demand of duty of Rs 2,00,826/- alongwith interest and to impose penalty on the appellant company and its Director. The Adjudicating Authority confirmed the demand of duty alongwith interest and imposed penalties, which was upheld by the Commissioner (Appeals). The Tribunal by Final Order No A/1615-1616/WZB/AHD/2007 dtd 28.7.2007 remanded the matter to the Adjudicating Authority with certain direction. In de-nevo adjudication, the adjudicating authority confirmed the demand of duty of Rs 2,00,826/- alongwith interest and imposed penalty of equal amount of duty on appellant and also imposed penalty of Rs 15,000/- on the Director of the appellant company. By the impugned order the Commissioner (Appeals) upheld the adjudication order.

3. The Learned Advocate on behalf of the appellant submits that the entire demand was raised on the basis of the ruled paper recovered from the premises of the Security Guard, which is not corroborated with any evidence. He further submits that the Revenue had not done any further investigation of procurement of raw material, manufacture and transportation and financial transaction etc. He relied upon the decision of the Tribunal in the case of CCE., Coimbatore vs Sangmitra Cotton Mills Pvt Ltd - 2004.163.ELT.472 (Tri. Chennai) and the decision of the Honble Gujarat High Court in the case of CCE&ST vs Vishwa Traders Pvt Ltd  2013.287.ELT.243(Guj.), which is upheld by the Honble Supreme Court.

4. On the other hand, the Learned Authorised Representative for the Revenue reiterates the findings of the Commissioner (Appeals). He submits that in de-nevo proceedings has been taken-up as per Remand Order of the Tribunal. Hence, the submissions of the Learned Advocate cannot be sustained.

5. After hearing both the sides and on perusal of the records, I find that the instant de-nevo proceeding has been taken up in terms of Remand Order dtd 20th July, 2007 passed by the Tribunal, as under:

 I have carefully considered the submissions from both the sides. The Ld. Advocate is not disputing the record seized fro he watchman and his submission is that all the clearance or atleast most of he clearance mentioned in the watchmans private register are clearly covered by the duty paying documents an the presumption that all entries in the watchmans register was clandestine was incorrect. He seeks an opportunity for reconciling the same. This request merits acceptance and therefore, the order of the Commissioner (Appeals) is set aside and the matter remanded to original Authority to decide the some afresh after granting a reasonable opportunity of personal hearing to the appellants.

6. It is seen that the Tribunal remanded the matter to the Adjudicating Authority for verifications of the reconciliation of the clearance mentioned in the documents and the watchmans private register with the duty paying documents. On a query from the Bench, the Learned Advocate of the appellant submits that they are not challenging the reconciliation of the statements in the present appeal. I find that the Adjudicating Authority passed the order following the directions of the Tribunal in so far as to verify the reconciliation of the documents recovered from the security guard alongwith duty paying documents. The Learned Advocate has not disputed the reconciliation. Hence, the submissions of the Learned Advocate in respect of the investigation was not conducted properly cannot be examined at this stage.

8. Learned Advocate also submits that the penalty imposed on the Director is unwarranted, as he has no role on the alleged clandestine removal of goods. I do not find any material evidence in respect of imposition of penalty on the Director.

9. In view of the above discussions, the impugned order against Appellant No. 1 is upheld. However, the adjudicating authority had not given option to pay penalty 25% of the duty alongwith duty and interest within specified period under Section 11AC of the Central Excise Act 1944. So, it is directed that the appellant is entitled to pay penalty 25% of duty alongwith duty and interest within 30 days from the date of communication of this order under Section 11AC of the Act. The appeal filed by the Appellant No 1 is disposed of in the above terms. The penalty imposed on the Director is set aside. The appeal filed by the appellant No 2 is allowed.

(Dictated and pronounced in the Court)

(P.K. Das) Member (Judicial)

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