M/S. R.A Casting Pvt. Ltd vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 100/CE/MRT-I/2012 dated 19.4.2012 passed by Commissioner of Central Excise (Appeals), Meerut I]

For approval and signature:

Honble Mr Ashok Jindal, 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. R.A Casting Pvt. Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

ST, Meerut I

Appearance:

Shri Gorky Tiwari, Advocate for the Appellants

Shri R K Mishra, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 16.1.2015

FINAL ORDER NO. A/50102/2015-Ex(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order wherein duty, interest and penalty against the appellant was confirmed.

2. Brief facts of the case are that appellant are manufacture of MS ingots. On 24.2.2010, the factory of appellant was visited and some shortage of inputs and finished goods were detected. On detection of the shortage, the appellant paid the duty. Therefore, the case has been booked against the appellant by way of issuance of show cause notice for appropriation of duty already paid and for imposition of penalty under Section 11C of the Act. The show cause notice was adjudicated and demand was confirmed and appropriated and a penalty was also imposed.

3. On appeal before the learned Commissioner (Appeals), although the learned Commissioner (Appeals) held that there is no tangible evidence of clandestine removal of goods but he confirmed demand and penalty imposed by the adjudicating authority. Aggrieved from the said order, appellant is before me.

4. The learned Counsel for the appellants submits that as the learned Commissioner (Appeals) has given a finding that there is no tangible evidence of clandestine removal of goods. In these circumstances, duty, penalty are not payable by the appellants. In these circumstances, it is prayed that impugned order be set aside and to support this contention he relied on the decision of Hri Sidhdata Ispat P Ltd. vide Final Order No. A/54836/14 SM(Br) dated 24.12.2014. He also relied on the decision of Minakshi Castings [2011 (274) ELT 180 (All)].

5. On the other hand, learned AR drew my attention to the impugned order and submits that in their grounds of appeal before Commissioner (Appeals), there is clear submission that they are contesting the duty and they are contesting only penalty which has been imposed mechanically. He also submits that throughout the proceedings in the case, the appellant has not contested the duty aspect before the lower authorities. Therefore, at this stage, they cannot be allowed to contest the duty liability.

6. Heard the parties. Considered the submissions.

7. In this case, the appellant has paid the duty at the time when shortage was detected. Later on, the department issued a show cause notice for appropriation of duty paid by the appellant and imposition of penalty. The appellant did not contest the duty liability but contested only penalty till the level of Commissioner (Appeals). When learned Commissioner (Appeals) has given a finding that there is no tangible evidence of clandestine removal of goods, therefore appellant cannot be allowed to contest the duty liability taking support of Hri Sidhdata Ispat Pvt. Ltd. (supra) . In the case of Hri Sidhdata Ispat P Ltd., (supra), it is not coming out from the facts that appellant has not contested the duty liability before the lower authorities. In these circumstances, the decision of Hri Sidhdata is not applicable to the facts of this case. Further, I find that in the impugned order the learned Commissioner (Appeals) has given a clear finding that there is no tangible evidence of clandestine removal of goods. In these circumstances, without challenging the said order by the Revenue, I hold that penalty on appellant is not imposable. In these circumstances, penalty against the appellant is set aside to the extent, impugned order is modified.

8. Appeal is disposed of in the above terms.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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