M/S Motilon Synthetics vs Commissioners Of Central Excise

[ Arising out of OIA-MS/340-342/SRT-II/2007 dtd 23.10.2007 passed by Commissioners of Central Excise, Customs and Service Tax-SURAT-II ]

1. M/s Motilon Synthetics 2. M/s Baba Synthetics - Appellant(s) 3. Shri Juned Yakub Motiwala

Vs

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

Represented by :

For Assessee : Shri M N Saiyed, Consultant For Revenue : Shri Alok Srivastava, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical)

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) Mr. P.M. Saleem, Honble Member (Technical)

Date of Hearing / Decision : 23/7/2015

ORDER No. A/11125-11127/2015 dtd 23/7/2015

Per : Mr.P.K. Das,

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

2. The relevant facts of the case, in brief, are that M/s Motilon Synthetics and M/s Baba Synthetics situated in the same premises were engaged in the manufacture of Textured Yarn and Twisted Yarn classifiable under Chapter 54 of the Schedule of Central Excise Tariff Act 1985. On 9.1.2001, the Central Excise Officers visited the factory premises of both the appellants and detected clandestine removal of the goods on the basis of various documents. The Adjudicating Authority confirmed the demand of duty alongwith interest and also imposed penalty of Rs 74,966/- and Rs 1,90,144/- on M/s Baba Synthetics and M/s Motilon Synthetics respectively. A penalty of Rs 50,000/- was imposed on Shri Juned Yakub Motiwala, Authorised person of these appellants. The commissioner (Appeals) upheld the adjudication order and rejected the appeals filed by the appellants.

3. After hearing both the sides and on perusal of the records, we find that the main contention of the Learned Counsel on behalf of the appellants is that the appellants already paid the duty and therefore imposition of penalties are not warranted. It is also submitted that the penalty imposed on Shri Yaqub Sattar Motiwala, who is an employee of the appellants unjustified.

4. We find that the appellants admitted the clandestine removal of goods without any documents and also deposited the entire amount of duty. Hence, the imposition of penalty under Section 11AC of Central Excise Act 1944 is correct. But, the Adjudicating Authority should have given an option to pay penalty of 25% of the duty, alongwith the entire amount of duty and interest within 30 days as provided.

5. Regarding the imposition of penalty on Shri Juned Yakub Motiwala, we find that he is an authorised person of the appellants. There is no material available on record that the appellant was beneficiary on the clandestine removal of goods. He was the employee of the appellant-company. It is noted that the penalty under Section 11AC of the Act have already been imposed on the appellant-company. In the overall facts and circumstances of the case, imposition of penalty on Shri Juned Yakub Motiwala is unwarranted.

6. In view of the above discussions, the impugned order against M/s Baba Synthetics and M/s Motilon Synthetics are upheld and an option is given to both the appellants to pay penalty of 25% of the duty, alongwith the entire amount of duty and interest within 30 days from the date of communication of this order as provided under Section 11AC of the Central Excise Act 1944. Penalty imposed on Shri Juned Yakub Motiwala is set aside and the appeal is allowed.

(Dictated and pronounced in the Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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