2011 (1) TMI 989 - AT - Central Excise

Remand proceedings - contentions of the department that the Commissioner (Appeals) had not considered the documents relied upon by the department as well as 9 decisions in support of clandestine removal - Held that - The Commissioner (Appeals) has discussed in detail each document and came to the conclusion that demand is sustainable only in some cases whereas demand is not sustainable in other cases. He has also discussed each case law referred to by the department. Therefore no infirmity in the order passed by the Commissioner (Appeals) with regard to confirmation of demand of duty amount. Since the Commissioner (Appeals) has upheld duty demand on account of clandestine removal equal amount of penalty is also leviable under Section 11AC of the Central Excise Act and interest also payable under Section 11AB of the Act. The appeal is partly allowed.

Summary

Issues:
Appeal against Order-in-Appeal No: PII/BKS/295/2006 dated 30/10/2006 - Commissioner (Appeals) not considering documents and case laws - Remand proceedings - Confirmation of demand for duty amount - Penalty and interest imposition.

Analysis:

1. The appeal was filed by the Revenue against the Order-in-Appeal, which was remanded back to the Commissioner (Appeals) for fresh decision. The Bench observed that the Commissioner had not considered the documents and case laws presented by the Revenue, leading to a direction for a fresh speaking order with findings on the evidence provided.

2. Despite no representation from the respondent after multiple adjournments, the appeal was taken up for disposal. The Commissioner (Appeals) discussed all documents and case laws in detail in the order, determining the sustainability of the demand. The final order confirmed a duty demand of Rs. 54,480, while setting aside the penalty and interest based on the decision in the case of Commissioner of Central Excise vs. Machino Montell 2004.

3. Upon hearing the JDR, it was noted that the Commissioner had thoroughly examined each document and case law, concluding that the demand was sustainable in some instances but not in others. The order regarding the duty demand was deemed appropriate. However, the decision to set aside the penalty and interest was found to be incorrect based on Supreme Court judgments in cases such as Dharmendra Textile Processors 2008 and Union of India vs. Rajasthan Spinning & Weaving Mills 2009.

4. As the duty demand for clandestine removal was upheld, it was determined that an equal amount of penalty under Section 11AC of the Central Excise Act and interest under Section 11AB of the Act were also applicable. Therefore, the appeal was partly allowed, recognizing the duty demand and the consequent penalty and interest obligations as per the law.