2008 (4) TMI 119 - AT - Central Excise

Clandestine removal - Removal of goods for job work without following prescribed procedure - contention of appellant that the sale value should be treated as cum duty price and demand should be re-worked, is accepted - no justification for a separate penalty on the proprietor in addition to penalty on the firm - Since the duty demand requires re-working, the penalties should also be re-considered

Summary

Issues Involved:
1. Demand of duty and imposition of penalty on M/s Kobe Suspension Co. Pvt. Ltd.
2. Demand of duty and imposition of penalty on M/s Kavantry Springs Fabrication Co.
3. Penalty on Shri Kulbir Singh Uberoi, M.D. of M/s Kobe Suspension Co. Pvt. Ltd.
4. Penalty on Mrs. Kukky Oberoi, Proprietrix of M/s Kavantry Springs Fabrication Co.

Issue-wise Detailed Analysis:

1. Demand of duty and imposition of penalty on M/s Kobe Suspension Co. Pvt. Ltd.:
The Commissioner demanded duty of Rs. 66,63,601/- from M/s Kobe Suspension Co. Pvt. Ltd., based on the presumption that raw materials shown in invoices submitted to ASTRU were used in manufacturing leaf springs, which were cleared without payment of duty. The appellant argued that the invoices submitted to ASTRU were manipulated to inflate prices and were not related to actual purchases. The Tribunal noted that similar allegations against suppliers like M/s Sun Flag Iron & Steel Ltd. and others were found unsustainable by the Commissioner (Appeals) and the Tribunal. The Tribunal held that the demand and penalty could not be sustained as the basis of the demand was not proven.

2. Demand of duty and imposition of penalty on M/s Kavantry Springs Fabrication Co.:
The Commissioner demanded duty of Rs. 23,23,349/- from M/s Kavantry Springs Fabrication Co., asserting they manufactured leaf springs and not just traded them. The appellant claimed they got leaf springs manufactured on a job work basis by M/s V. Jai Auto Industries. The Tribunal examined the delivery challans and found that the claim of sending only raw materials was an afterthought. The Tribunal held that M/s Kavantry Springs Fabrication Co. actually manufactured leaf springs, and M/s V. Jai Auto Industries only undertook heat treatment. However, the Tribunal accepted the appellant's submission to rework the duty demand based on the actual average weight and price of their products and granted the benefit of Cenvat credit on raw materials used. The Tribunal also accepted that the sale value should be treated as cum duty price and required the demand to be reworked accordingly.

3. Penalty on Shri Kulbir Singh Uberoi, M.D. of M/s Kobe Suspension Co. Pvt. Ltd.:
The Tribunal found that the imposition of penalty on Shri Kulbir Singh Uberoi for his alleged role in evasion by M/s Kobe Suspension Co. Pvt. Ltd. could not be sustained as the primary demand and penalty on the company were not warranted.

4. Penalty on Mrs. Kukky Oberoi, Proprietrix of M/s Kavantry Springs Fabrication Co.:
The Tribunal set aside the separate penalty on Mrs. Kukky Oberoi, noting there was no justification for a separate penalty on the proprietor in addition to the penalty on the firm. The Tribunal directed that penalties on the firm and Shri Kulbir Singh Uberoi be reconsidered based on the actual duty evasion determined after reworking the demand.

Conclusion:
The appeals were disposed of as follows:
- Appeal of M/s Kobe Suspension Co. Pvt. Ltd. was allowed.
- Appeal of M/s Kavantry Springs Fabrication Co. was allowed by way of remand for reworking the duty demand.
- Appeal by Shri Kulbir Singh Uberoi was partly allowed by not sustaining the penalty related to M/s Kobe Suspension Co. Pvt. Ltd.
- Appeal by Mrs. Kukky Oberoi was allowed by setting aside the separate penalty on her. The penalty on the firm was to be re-determined.