M/S. T&I Private Ltd vs Commr. Of Central Excise & Service

(Arising out of the Order-in-Original No.29/Commr./CE/GHY/12-13 dated-March 2, 2013 passed by the Commissioner of Central Excise & Service Tax, Guwahati)

For approval and signature of:

DR. D.M. MISRA, HONBLE JUDICIAL MEMBER ======================================================

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. T&I Private Ltd. APPELLANT(S)

VERSUS Commr. of Central Excise & Service Tax-Guwahati

RESPONDENT(S) APPEARANCE

Sri Arnab Chakraborti, Advocate FOR APPELLANTS Sri S.P. Pal, Appraiser (A.R.) FOR THE RESPONDENTS CORAM: DR. D.M. MISRA, HONBLE JUDICIAL MEMBER

DATE OF HEARING & DECISION : 04/03/2015 ORDER NO.FO/A/75208/2015 Per DR. D.M. MISRA

This appeal is filed against order-in-original No. 29/Commr./CE/GHY/12-13 dated-March 2, 2013

2. The Ld. Advocate Shri Arnab Chakraborty for the applicant submits that this is the third round of litigation before this Tribunal. He submits that in the second round of litigation, this Tribunal has directed the adjudicating authority to re-quantify the demand in accordance with the observation recorded in the said order dated 14/12/2010. Also, this Tribunal directed to re-assess the penalty in accordance with the duty.The Ld. Commr. has accepted and confirmed the quantification of Rs.3,64,142/- as the duty liability. However, he imposed penalty under Section 11AC of CEA, 1944 without according an opportunity to the appellant to avail the statutory benefit of 25% payment of the penalty imposed. He submits that the present demand has been quantified for the period 1994 to 1999, whereas Section 11AC has been brought into effect from 28/09/1996. The amount of duty involved after the said date 28.9.1996 is Rs.2,40,764/-. In support of his contention that the appellant be allowed to pay 25% of the penalty imposed under Section 11AC of CEA, 1944, the Ld. Advocate has referred to the judgment of the Honble Gujarat High Court in the case of Commr. of C. Ex & Customs , Surat-I Vs. Harish Silk Mills-2010 (255) E.L.T. 393 (Gujarat).

3. The Ld. A.R. for the Revenue reiterated the findings of the Ld. Commissioner. The Ld. A.R. for the Revenue does not dispute that the amount of duty involved after 28/09/1996 is Rs.2.40 Lakhs being calculated from the annexure to the show cause notice.

4. Heard both sides and perused the records. The limited issue involved in the present case is the quantum of penalty imposed on the appellant. In the demand Notice both Rule 173Q as well as Section 11AC have been invoked proposing penalty. The Ld. Commr. has imposed penalty only under Section 11AC of CEA, 1944 and also observed in the impugned order that the appellant has already paid the entire amount of duty. Therefore, in view of the judgment of the Honble Gujarat High Court in Harish Silk Mills case, the Appellant should be allowed the opportunity to pay 25% of the penalty imposed. Since the matter has already travelled twice from this Tribunal to the adjudicating authority, therefore, it is not prudent to remand it again for the purpose of calculation of 25% of the total penalty imposed under Section 11AC of CEA, 1944. Considering the fact that the duty involved after 28/09/1996 is Rs.2,40,764/-, the appellant is directed to pay 25% of the said amount of Rs.2,40,764/- within eight weeks from date of communication of the order. The impugned order is modified as above and appeal is allowed to the above extent. Appeal partly allowed.

(Dictated and pronounced in the open Court) Sd/- 20/4/15 (DR. D.M. MISRA) JUDICIAL MEMBER

k.b/-

Excise Appeal No.-70560/2013

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