Rakesh Kumar Gupta vs Cce, Delhi

Date of Hearing/Decision: 02.02.2015

(Arsing out of Order-in-Appeal No.141-CE/D-II/13 dt.20.8.13 passed by the CCE(A), Delhi-II)

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? No 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?

Seen

4 Whether Order is to be circulated to the Departmental authorities? Yes

Rakesh Kumar Gupta Appellant

Vs.

CCE, Delhi Respondent

Present for the Appellant: Shri Rajesh Chhibber, Advocate

Present for the Respondent: Shri G.R.Singh, AR

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

FINAL ORDER NO.50255/2015

PER: ASHOK JINDAL

The appellant is in appeal against the impugned order wherein the goods have been confiscated and allowed to be redeemed on payment of redemption fine and duty and penalties have also been imposed.

2. The brief facts of the case are that the appellant started activity of drawing of wire from the wire rod in the month of December, 2010 and in March, 2011 investigation was conducted in the premises of the appellant on the premise that the appellant is clearing the goods on kachcha slips and not maintaining proper records as prescribed in Central Excise Rules. The goods were seized and thereafter confiscated and allowed to be redeemed on payment of redemption fine and duty and penalties were also imposed.

3. Learned Counsel of the appellant submits that the appellant started their activity of drawing of wire from wire rod in the month of December, 2010 and by all means their turn over could not have crossed the SSI exemption limit of Rs.1.5 crores till March, 2011. Therefore, they did not seek registration from the Central Excise department and are entitled for the benefit of exemption under Notification No.8/2003. In these circumstances, the goods were not required to be seized. He further submits that as their production was not so much they did not seek registration from the Central Excise department. Therefore, the impugned is required to be set aside. To support his contention, he relies on the decision of the Tribunal in the case of Shanti Fasteners vs. CCE, Jalandhar-2005 (192) ELT 172 (Tri.-Del.) which is affirmed by Honble Punjab & Haryana High Court reported at 2008 (226) ELT 340 (P & H).

4. On the other hand, learned AR reiterates the findings of the Commissioner (Appeals) and submits that although the appellant was working under SSI exemption, the records required to be maintained by the appellant. In the absence of proper records, the goods were rightly confiscated and allowed to be redeemed on payment of redemption fine.

5. Heard the party and considered submissions.

6. In this case, it is admitted fact that the production capacity of the appellant was not so much so as to get registration after crossing SSI exemption limit. In these circumstances, the burden casts on the Revenue to prove that the appellant has crossed the limit and that they were clearing the goods clandestinely. As discussed above, the production capacity of the appellant by all means is remained below the SSI exemption limit, therefore the goods were not required to be seized and consequently confiscated. In these terms, I set aside the order of confiscation, demanding duty and imposing penalty on the appellant. The appeal is allowed with consequential relief, if any.

(Pronounced in the open court)

(ASHOK JINDAL)

MEMBER (JUDICIAL)

mk

4 4