2004 (12) TMI 619 - AT - Central Excise

Summary

Issues: Duty demand and penalty in relation to removal of ACs and Washing machines without payment of duty.

In this case, the appellant was faced with a duty demand of Rs. 99,419 and a penalty of Rs. 15,000 for the removal of 13 ACs and 5 Washing machines without payment of duty. The appellant argued that most removals were for testing purposes and not for sale, with duty already paid in some cases. The appellant contended that duty was only outstanding for 5 ACs, amounting to Rs. 33,263, which they promptly paid upon notification by the Central Excise authorities. Discrepancies arose regarding the clearance of ACs under invoice No. 1 dated 27-3-98, with the lower authorities deeming it invalid due to entries in the gate register. However, the appellant's counsel argued that the entries in the gate register and invoice matched, indicating the clearance on 28-3-98 should be considered covered by the invoice. The counsel also clarified the situation regarding the 5 ACs taken out for demonstration purposes, asserting that duty had already been paid by the dealer. Regarding the Washing machines, the appellant pointed out that the duty demand did not consider the clearance under invoice No. 4 dated 6-4-98.

The appellant further argued against the penalty, citing a precedent where it was held that no penalty is warranted if duty liability is settled before the issuance of a notice. Upon reviewing the records, the judge found merit in the appellant's explanations regarding the duty amount and penalty. The judge accepted the appellant's position that the invoice dated 27-3-98 covered the clearance on 28-3-98 based on matching vehicle and serial numbers in the gate register and invoice. Additionally, the judge noted that the lower authorities had overlooked the clearance under invoice No. 4 for the Washing machines. Consequently, the appeal was allowed, and the decision favored the appellant.