9911796707
TMI Blog2017 (12) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the Order-in-Original. The issue involved in both the appeals is identical, therefore, both the appeals are disposed of by this common order. 2. Briefly the facts of the present case are that the appellants are engaged in the manufacture and clearance of excisable goods viz. LPG tankers (mobile and stationery) falling under chapter sub heading No. 87163100 of the schedule to Central Excise Tariff Act, 1985 under the claim of benefit of value based exemption up to an aggregate clearance value of Rupees one hundred/one hundred and fifty lakh in terms of Notification No. 8/2003 CE dated 01.03.2003 as amended as eligible to small scale units and are also availing benefit of cenvat credit in terms of Rule 3 of Cenvat Credit Rules, 2004 on cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.06 & 09/07.07.06), while operating under full exemption in terms of Notification cited supra, the appellants have collected an amount of Rs. 1,28,928/- (Rupees One Lakh Twenty Eight Thousand Nine Hundred and Twenty Eight only) towards Central Excise Duty (Basic Excise Duty + Education Cess) from their customers but have failed to debit the said duty collected to the government as required in terms of Section 11D of Central Excise Act, 1944. The appellants on being informed on the above issues culminating in non levy/short levy of CED in respect of goods cleared without payment of duty even after crossing the full exemption limit of Rs. 100.00 lakhs turnover during two consecutive FY 2002-03 & 2003-04, non reversal of cenvat credit followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the binding judicial precedent on the same issue. He further submitted that in the present case the duty along with interest has been paid much before the issue of show-cause notice and therefore, the Department should not have issued the show-cause notice and should not have imposed penalty under Section 11AC of the Central Excise Act 1944. He further submitted that the company was availing exemption in terms of Notification No. 8/2003-CE dated 01.03.2003 and in spite of the fact the value of clearance during the year 2006-07 was below the threshold limit of Rs. 1 crore, the duty was inadvertently charged and collected in respect of two invoices raised during May 2006 and July 2006. However, Rs. 1,28,928/- (Rupees One Lakh Twenty Eight Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs Ninety Nine Thousand and Forty One only) as an amount of Rs. 1,28,928/- (Rupees One Lakh Twenty Eight Thousand Nine Hundred and Twenty Eight only) was not duty assessed under Section 11A but the amount liable to be credited under Section 11D of the Act. He also submitted that the penalty of Rs. 50,000/- (Rupees Fifty Thousand only) imposed on the Managing Director under Rule 26 of the Central Excise Rules, 2002 is not sustainable as the Managing Director had no personal role in the non-payment. 5. On the other hand the learned AR defended the impugned order and submitted that it is a case where the penalty under Section 11AC has rightly imposed. He further submitted that for two years the duty was not paid in spite of taking the duty fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I also find that the proportionate cevnat credit on stock of inputs, semi finished goods and finished goods amounting to Rs. 96,087/- (Rupees Ninety Six Thousand and Eighty Seven only) was also paid after being pointed out by the Department. In view of these facts, I do not find any infirmity in the impugned order. Further I find that the imposition of penalty of Rs. 6,99,041/- (Rupees Six Lakhs Ninety Nine Thousand and Forty One only) under Section 11AC of the Act is not legal and proper and the actual duty liability under Section 11A of the Act comes to Rs. 5,70,113/- (Rupees Five Lakhs Seventy Thousand One Hundred and Thirteen only) and not Rs. 6,99,041/- (Rupees Six Lakhs Ninety Nine Thousand and Forty One only) because the amount of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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