Prakash Cable Industries vs Cce, Delhi-Ii

[Arising out of the Order-in-Appeal No.135/CE/D-II/13 dt.16.7.13 passed by the CCE (Appeals), Delhi-II)

Date of Hearing/Decision: 05.2.2015

For Approval & signature:

Honble Mr.Ashok Jindal, 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 would be released under Rule 27 of the 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 Department Authorities? Yes

Prakash Cable Industries Appellant

Shri Ajay Gupta

Vs.

CCE, Delhi-II Respondent

Appearance

Shri V.R.Sethi, Advocate- for the appellant

Shri Devender Singh A.R. - for the respondent

CORAM: Honble Mr.Ashok Jindal, Member (Judicial)

FINAL ORDER NO.50345-50346/2015

Per Ashok Jindal :

The appellants are in appeals against the impugned order for confiscation of the goods, imposing redemption of fine and penalties of Rs.35,000/- on the main appellant M/s.Prakash Cable Industries and Rs.15,000/- on the co-appellant Shri Ajay Gupta.

2. The brief facts of the case are that an investigation was conducted in the factory premises of the main appellant on 03.01.2011. On physical stock taking, it was noticed that there was some shortage of finished goods and some goods were found in excess. The appellant admitted their duty liability and paid the entire amount of duty on these goods alongwith interest and also paid 25% of penalty equal to duty imposed under section 11AC of Central Excise Act, 1944. Thereafter a show cause notice was issued for confiscation of the goods and imposing the penalty on the appellant. The adjudicating authority observed that the appellant paid the entire amount of duty on these goods alongwith interest and also paid 25% of penalty equal to duty imposed under section 11AC of Central Excise Act, 1944 and dropped the proceedings against the main appellant. But on appeal by the Revenue before the Commissioner (Appeals), the order of the adjudicating authority was modified by confiscating the excess stock found and consequently allowed to be redeemed on payment of redemption fine and imposed penalty on the main appellant and co-appellant. Aggrieved with the said order, the appellants are before me.

3. Ld.Counsel for the appellant submits that as per provisions of section 11A (1) (a) of Central Excise Act,1944, the proceedings would have been concluded on payment of duty alongwith interest with 25% duty as penalty imposed on the main appellant within 30 days of issue of show cause notice. The adjudicating authority has rightly concluded the proceedings against the main appellant. Therefore, the same were not warranted. He further submits that after passing the adjudication order and before appellate authority order, the impugned goods have been sold by the appellant. Therefore, in view of the decision of the larger bench of the Tribunal in the case of Shiv Kripa Ispat Pvt.Ltd. vs. CCE, Nashik-2009 (91) RLT 99 (CESTAT-LB), the redemption fine is not imposable. In respect of penalty imposed on the co-appellant Shri Ajay Gupta, this case is squarely covered by the decision of Honble Punjab & Haryana high Court in the case of CCE, Chandigarh vs. Vikas Garg-2014 9306) ELT 94 (P&H). He also relies on the decision of the Tribunal in the case of Jay Prakash Agarwal-2013 (297) ELT 554 (Tri.-Del.).

4. On the other hand, learned AR for the Revenue relies on the decision of Tribunal in the case of CCE, Raipur vs. Anand Agawal-2013 9288) ELT 90 (Tri.-Del.) and submits that the penalty is imposable.

5. Heard the parties and considered the submissions.

6. In this case, on merits, the appellant has no case and the appellant has admitted duty liability and the same has been paid alongwith interest and also paid 25% duty as penalty by the main appellant within 30 days of issue of show cause notice. In such situation, the proceedings against the main appellant and co-appellant come to an end.

7. Reliance placed by the learned AR on the decision of the Tribunal in the case of CCE, Raipur vs. Anand Agawal (supra) is not helpful to him as the decision in Anand Agarwal is per incuriam as the decision in the case of Vikas Garg-2011 (266) ELT 137 (Tri.-Del.) has not been considered by this Tribunal. Further in the case of Jay Prakash Agarwal (supra) a similar issue came up before this Tribunal after considering the decision in the case of Anand Agarwal have arrived at the decision that if duty, interest and 25% duty as penalty have been deposited by the manufacturer within the stipulated time as prescribed under section 11A (1) (a) of Central Excise Act, 1944, the show cause notice also stands concluded.

8. In view of above, I hold that the impugned order was not required to be passed and in this case the proceedings against the appellants would be concluded.

9. In view of the decision of the Tribunal in the case of Jay Prakash Agarwal (supra), I hold that confiscation of the goods and consequently imposition of redemption fine penalties are not warranted. Accordingly, the impugned order is set aside and the appeals are allowed with consequential relief.

(dictated & pronounced in the open court)

(Ashok Jindal)

Member (Judicial)

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