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TMI Blog2013 (6) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.3.2005. 2. The adjudication resulted in duty demand of Rs. 36,82,921/- against M/s. Sukalp Agencies (appeal case No. 2497/205). Equal amount of penalty of Rs. 36,82,921/- was imposed under Section 11AC of Central Excise Act (hereinafter referred as the Act) following by and other consequences of law. That adjudication gave rise to further adjudication consequences against one more firm called Sukalp Engineering Corporation which is in appeal No. E/2498/2005 represented by Shri Neeraj Kumar Aggarwal. Penalty of Rs. 10 lakhs was imposed on Shri Neeraj Kumar Aggarwal. Followed by these consequences, there was another appeal arose by one Shri Satyavan Singh who was authorised signatory of Sukalp Agencies who is in appeal No. 2499/2005. He faced penalty of Rs. 50,000/- under Rule 26 of Central Excise Rules, 2002. 3. Both sides were heard and records perused. 4.1 The first count of allegation was that Sukalp Agencies cleared a D.G. Set under invoice No. 854 on 26.7.2002 i.e. 4 days before investigation was conducted issuing such invoice from an invoice book of preceding year to escape scrutiny of Revenue while invoice book for each financial year is separate and every transaction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leared on 8.7.2002 without that being recorded in the statutory record by the Appellant and also the clearance not followed by excise invoice. Learned Counsel submitted that this was only an inadvertent error for which duty component of Rs. 24,800/- was deposited in two phases. Revenue says that the breach cannot be claimed to be an inadvertent error but a deliberate breach of law. We find that without intervention of human element, occurrence of such transaction is improbable. Accordingly, we confirm the duty element of Rs. 24,800/- on this count of allegation. It was pleaded today by learned Counsel that appropriation of that amount should be made against the demand. There is no quarrel to this proposition. Accordingly, learned Authority shall appropriate the deposit on verification against demand of Rs. 24,800/-. Appropriate interest shall be calculated and that shall be payable by the appellant. So far as penalty equal to the amount of duty on this allegation is concerned, there is absolutely no scope to grant waiver. Accordingly, that is confirmed. 6. Third allegation is that 2 D.G. sets were cleared in January, 2002 and July, 202. Learned Counsel says that these two D.G. set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isable goods from installation and testing charge activity by divisible contracts, it is not possible to agree with the appellant. Therefore, Revenue's allegation that installation and testing charges should form part of assessable value is sustained. We confirm the duty demand of Rs. 19,58,726/- on this count. We are unable to find any way to grant any immunity from penalty against the duty demand of Rs. 19,58,726/-, as no evidence is available on record to support separability of contract as stated above for no inclusion of alleged charge in the assessable value of the excisable goods supplied. Therefore, penalty of equal amount of Rs. 19,58,726/- sustains. Interest of follow. 8. Fifth count of demand is that the appellant was not entitled to the SSI Exemption benefit. Learned Counsel fairly states that to avoid dispute, an amount of Rs. 2,70,872/- arising on this count has already been deposited. We direct appropriation thereof against such demand. The department did not bring out on record to show that SSI exemption claim was deliberately made to cause prejudice to Revenue. It can be appreciated that interpretation difficulty in exemption notification should not penalise the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- respectively while excise invoices for those two years discloses figure of Rs. 20,58,801/- and Rs. 20,99,560/- respectively. The difference in figures of these years resulted in duty demand of Rs. 62,650/- without reconciliation. Learned Counsel says that if the figures appearing in pages 56 to 59 of the appeal folder are reconciled such demand shall not sustain. Revenue does not agree with such contention submitting that no reconciliation was before the authority below. We find that submission of Revenue has substance since page 56 to 59 of appeal folder is fresh evidence before the Tribunal. We are unable to appreciate at this stage that whether reconciliation exercise shall be of any help to the Appellant. But to do justice to the appellant, we remit this limited aspect to the learned Adjudicating Authority to grant opportunity to the appellant to reconcile the figures between the profit and loss account and excise invoices. If above pages are genuine and flow from statutory record, depending upon the facts, situation and the result of his inquiry, shall pass appropriate order. Interest, if any shall be payable and penalty, if imposable, shall be considered by him along with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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