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TMI Blog2013 (12) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... s clearly bad in law – Order set aside and the matter restore tot the adjudicatory authority – Decided in favour of Revenue. - E/3178/2004-Mum. and Cross Objection No. E/CO/15/2009 - Final Order Nos. A/845-846/2013-WZB/C-II(EB) - Dated:- 22-8-2013 - P R Chandrasekharan And Anil Choudhary, JJ. PER : P R Chandrasekharan The Revenue is in appeal against Order-in-Appeal No. P-II/BKS/274/04 dated 28.6.2004 passed by the Commissioner of Central Excise (Appeals), Pune-II. 2. The COD application seeks to condone a delay of about four years in filing the cross-objection. The reason stated is misplacing of the file by the dealing official. The explanation given is highly unsatisfactory. Accordingly, the COD application is dismissed. Consequently, the Cross Objection also stands dismissed. 3. The facts relevant to the case are as follows:- The respondent, M/s Kay Bouvet Engineering Pvt. Ltd. took CENVAT Credit of CVD amounting to Rs. 30,56,260/- in respect of goods imported vide Bill of Entry No. 00478 dated 9.7.2001 without receipt of the goods in their factory. However, in the Gate Register maintained at the factory, entries were made showing the receipt of the goods on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the factory and also by manipulating the private records such as Gate Register to show receipt. Therefore, the provisions of Section 11A(2B), which provides for non-issue of show-cause notice in a case where the duty liability has been discharged would not apply. Therefore, the respondent is liable to pay interest and also penalty as provided for in the law. The learned Addl. Commissioner (AR) appearing for the Revenue reiterates the grounds urged in the appeal memorandum. He further submits that the appellant had resorted to manipulation in books of accounts by making false entries in the Gate Register even prior to clearance of the goods from the customs. It is also on record that the appellant had not received the goods into the factory but directly consigned the same to M/s Dhanlaxmi SSK Niyamit, Belgaum. Further, from the statements of the Authorized Signatory and the Accountant of the respondent firm, it is clear that the machinery was imported not for use by the appellant, but was meant for Dhanlaxmi SSK, who had placed the order for the goods on the respondent. Fully knowing well that the goods were not meant for respondent's use and the goods were not received in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section ( 1) in respect of the duty so paid: Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "one year" referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanation 1. - Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made there under with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cenvat Credit Rules; therefore, the said decision would not apply to the facts of the present case. As regards the decision of Hon'ble High Court of Allahabad in the case of Rana Sugar (supra), the said decision was passed before the Hon'ble Apex Court decision in the case of Ind-Swift Laboratories Ltd. was pronounced. The decision of the Hon'ble High Court of Allahabad is contrary to the decision of the Hon'ble Apex Court in the case of Ind-Swift Laboratories Ltd.(supra). Therefore, the same cannot be relied upon as decision of this Tribunal in the case of Kesarwani Zarda Bhandar (supra) , this decision is a Single member Bench decision, which is not binding on us. Secondly, the said decision does not take into account the decision of the Hon'ble High Court of Punjab Haryana in the case of Mahino Montell (supra), where in an identical circumstances, the Hon'ble High Court of Punjab Haryana has held that penal consequences would follow in case fraud, collusion or willful mis-statement or suppression of facts are involved. Therefore, the said decision is also not applicable to the facts of the present case. 6.4 As regards the Hon'ble High Court of Karnataka's decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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