9911796707
TMI Blog2011 (2) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... any infirmity in the order passed by the Commissioner (Appeals) by which the penalty equal to the duty demanded had been upheld - The appeal is, therefore, dismissed. - E/2553 of 2003 (SM) - - - Dated:- 2-2-2011 - Hon'ble Shri Rakesh Kumar, Member (Technical) Appearance Shri G.K. Sarkar, Advocate for the appellant. Ms. Rim Jhim Prasad, Authorized Representative (SDR) for the respondent. Per. Rakesh Kumar :- The facts dealing to this appeal are, in brief, as under. 1.1 The appellant are manufacturer of manmade spun yarn chargeable to Central Excise Duty. They were also availing the facility of Cenvat credit of duty paid on inputs used in or in relation to the manufacture of final products. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorized Signatory of the appellant company. The show cause notice was adjudicated by the Additional Commissioner vide order-in-original dated 17th April 2002 by which the duty demand against the appellant was confirmed alongwith interest and beside this, while penalty of Rs. 1,23,331/- was imposed on the appellant company, penalty of Rs. 25,000/- was imposed on Shri C.P. Sukhlecha. On appeals being filed by the appellants to the Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 28/03/03 dismissed their appeals. However, on appeal being filed by the appellant company before the Tribunal, the Tribunal vide final order No. 1817/05-SM dated 3/10/05 while upholding the duty demand reduced the penalty to Rs. 15,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed Signatory of the appellant and of the Vice President (Commercial) Shri C.P. Sukhlacha from which it can be concluded that in transferring the cenvated fibre to their 100% EOU there was any intention to evade the duty. He, therefore, pleaded the criteria laid down by the Hon ble Supreme Court in its judgment in the case of Union of India vs. Rajasthan Spinning Weaving Mills (supra) is not present in this case and hence penalty under Section 11AC equivalent to the duty demanded cannot be imposed. 2.2 Ms. Rim Jhim Prasad, learned Departmental Representative, defending the impugned order pleaded that huge quantity of polyester and viscose staple fibre, in respect of which Cenvat credit of Rs. 1,23,331/- has been taken, had been remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Act or of the Rules made thereunder with intent to evade payment of duty, are present, the penalty equivalent to the duty demanded has to be imposed and the Adjudicating Authority has no discretion to impose lesser penalty. In this case, there is no dispute that 12,000 kgs. of polyester and viscose staple fibre, in respect of which cenvated had been taken, was removed from the appellant s factory to M/s Modern Polyester Yarn, a 100% EOU belonging to the same group of companies without payment of duty or reversal of Cenvat credit and without issue of the invoice and this removal amounts to clandestine removal without of duty in contravention of the provisions of the Cenvat Credit Rules and hence in my view the conditions for imposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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