M/S. Oswal Cables Pvt. Ltd vs Commr. Of Central Excise & Customs

Customs Appeal No. 70962/2013 (Arising out of the Order-in-Appeal No. 56/SLG/2013 dated-1/04/2013 passed by the Commissioner of Central Excise (Appeals-III), Kolkata) For approval and signature of: SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER

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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. Oswal Cables Pvt. Ltd. APPELLANT(S) VERSUS Commr. of Central Excise & Customs- Silliguri RESPONDENT(S) APPEARANCE NONE FOR APPELLANT(S) Sri S.K. Naskar, A.C. (A.R.) FOR THE RESPONDENT(S) CORAM: SHRI H.K. THAKUR, HONBLE TECHNICAL MEMBER

DATE OF HEARING & DECISION : 11/09/2015 ORDER NO : FO/A/75478/2015 Per Shri H.K. THAKUR None appeared on behalf of the appellant. 2. Heard the Ld. A.R. for the Revenue.

3. This appeal has been filed against Order-in-Appeal No. 56/SLG/2013 dated-1/04/2013 under which first appellate authority has upheld the order-in-original dated 31/3/2010 passed by the adjudicating authority.

4. A letter dated 02/06/2015 was received by the Bench, written by the appellant. It has been argued by the appellant that there was no malafide intention on the part of the appellant not to pay education cess. It is the case of the appellant that since short payment was intimated to them, the same was paid alongwith interest and there is no point in imposition of penalty.

5. Shri S.K. Naskar, A.C. (A.R.), appearing on behalf of the Revenue submitted that the appellant imported G.I. wire falling under Chapter Heading 72179000 of the Customs Tariff Act, 1975 and cleared the same on payment of appropriate duties except an amount of Rs.17,516/- pertaining to education cess. It was fairly submitted by the Ld. A.R. that the entire amount of duty demanded alongwith interest was paid by the appellant befor the issue of show cause notice. Ld. A.R. also argued that it was the duty of the appellant to properly pay the duty and accordingly defended the order passed by the lower authority.

6. In this case the appellant paid the tax on G.I. wires by filing an appropriate bill of entry and paid the duty as assessed by the Assessing Officer.However, later it was found that the amount of education cess was not paid by the appellant and a show cause notice was issued. The appellant properly paid the duty demanded alongwith interest. In a case of assessment over a bill of entry, it is the duty of the Assessing Officer to properly assess the duty and onus cannot be shifted to the appellant for not calculating the correct rate of duty. Appellant promptly paid the entire amount of duty demanded alongwith interest. Under the present factual matrix, it is not a fit case for imposition of penalty under Section 14 (a) of the Customs Act, 1962. Accordingly, the appeal filed by the appellant to the extent of imposition of penalty is allowed.

(Operative part of the order already pronounced in the Court).

Sd/- 14/09/15 (H.K. THAKUR) TECHNICAL MEMBER

k.b/-

Customs Appeal No. 70962/2013

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