2017 (12) TMI 207 - AT - Central Excise

Penalty u/r 25 - N/N. 108/95 dated 28.08.1995 - wires and cables - Held that - the project is for Indian Railways. The certificate is issued only by Chief of Project Manager in the Indian Railways. It is not coming out clearly in the impugned order, whether there is any other Line Ministry supervising this project which is a railway project. In any case, without further examining the merits of the case, there is no sustainable ground to invoke fraud, suppression or wilful mis-statement in the facts of the present case. The clearance of goods is without payment of duty claiming N/N. 108/95 has been reflected in the monthly statutory return and the clearance is based on the certificate issued by the Railway authorities - appeal allowed - decided in favor of appellant.

Summary

Issues:
Delay in filing the appeal, denial of exemption for wires and cables under Notification No.108/95, requirement of counter signature by the Ministry for exemption, imposition of penalty under Rule 25 of the Central Excise Rules.

Analysis:
1. Delay in Filing the Appeal:
The appeal involved a delay of 70 days due to the authorized employee proceeding on leave without taking necessary action. Despite the lack of a convincing reason for the delay, the Tribunal, in the interest of justice, allowed the condonation of delay upon payment of a specified cost to be deposited in the Prime Minister's Relief Fund within one week.

2. Denial of Exemption under Notification No.108/95:
The issue revolved around the denial of exemption for wires and cables cleared by the assessee under the said notification. The goods were cleared for a Railway Sector Improvement Project funded by the Asian Development Bank. The Revenue contended that there was no counter signature by the concerned Ministry, leading to the initiation of proceedings resulting in a demand confirmation and penalty imposition.

3. Requirement of Counter Signature for Exemption:
The Tribunal noted that the exemption notification required a certificate to be counter signed by an Officer not below the rank of Joint Secretary to the Government of India in the concerned Line Ministry. The assessee had based their clearance on a certificate issued by the Chief Project Manager of the Indian Railways, which did not fulfill the specific requirement of counter signature by the Ministry.

4. Imposition of Penalty under Rule 25:
The Revenue argued that the violation of the exemption condition necessitated the demand and penal action. However, the Tribunal found that the clearance of goods without duty payment was based on a certificate from the Railway authorities, and there was no evidence of fraud or wilful misstatement. Consequently, the Tribunal set aside the impugned order, allowing the appeal filed by the assessee.

In conclusion, the Tribunal allowed the appeal, emphasizing that the absence of a counter signature by the Ministry did not warrant the invocation of the extended period of demand or penalty. The decision was based on the lack of sustainable grounds for fraud or suppression in the case, ultimately leading to the setting aside of the impugned order.