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TMI Blog2019 (5) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 - Dated:- 7-5-2019 - SHRI S.S GARG, JUDICIAL MEMBER Shri Gowri Shankar H.R., Advocate For the Appellant Shri Madhupsharan, Asst. Commissioner (AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dt. 08/03/2018 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original (Remand) dt. 09/02/2016. 2.1. Briefly, the facts of the present case are that the appellants are 100% EOU, registered with Deputy commissioner of Customs in the year 1997. They have carried out commercial production till 1999 and became defunct thereafter. They entered into a sale agreement with Shri Ganapathy Bairy, proprietor of M/s. Bayir Chemicals. He added more machinery to the plant and started manufacturing herbal extracts on behalf of M/s. Bayir Chemicals and also on behalf of M/s. Sneha Chemicals, owned by his wife, on job work basis. The entire activity was carried out without intimation to the Customs authorities, without de-bonding of capital goods and without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld by the CESTAT. Aggrieved by the imposition of penalty of ₹ 16 lakhs, the appellant filed the appeal before the Commissioner(Appeals) only against the penalty which was rejected by him. Hence the present appeal. 3. Heard both sides and perused records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the remand order passed by the Tribunal dt. 08/03/2012. He further submitted that as per the direction of the Tribunal in para 9, the Tribunal has directed as under:- 9. Insofar as the penalty imposed on BEPL under Section 11AC is concerned, it goes without saying that this penalty is sustainable on the facts of this case inasmuch as the proviso to Section 11A(1) of the Act was rightly invoked on the ground of wilfull suppression of facts by GNCO /BEPL, for recovery of duty and, for that matter, the requirements of Section 11AC were satisfied. However, the quantum of this penalty needs to be redetermined by the adjudicating authority after requantifying the demand of duty. 4.2. He further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. K.P. Pouches (P) Ltd. Vs. UOI [2008(228) ELT 31 (Del.)] ii. Pasupati Prints Pvt. Ltd. Vs. CCE C, Surat-I [2007(220) ELT 167 (Tri. Ahmd.)] iii. CCE C, Aurangabad Vs. Om Sairam Steel Alloys Pvt. Ltd. [2009(248) ELT 332 (Tri. Mum.)] iv. CCE, Kanpur Vs. Ess Jay Poly Film (P) Ltd. [2010(249) ELT 575 (Tri. Del.)] v. CCE, Vs. Gowardhan Knitting Works [2010(260) ELT 77 (P H)] 5. On the other hand, the learned AR defended the impugned order and submitted that penalty has been imposed as per the direction of the Tribunal. He further submitted that the Tribunal has held that the appellant had tried to suppress the material facts with intent to evade payment of duty and the same was detected when the officers of the Department visited the premises of the appellant. 6.1. After considering the submissions of both sides and perusal of the material on record, I find that in the present case, the matter came up before the Tribunal in the earlier round of litigation and the Tribunal vide its order dt. 08/03/2012 remanded the matter to the original authority for requantification of the duty. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) where any duty of excise 2[has not been levied or paid or has been] short-levied or short-paid or erroneously refunded, by reason of fraud or collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (10) of section 11A shall also be liable to pay a penalty equal to the duty so determined; (b) where details of any transaction available in the specified records, reveal that any duty of excise has 2[has not been levied or paid or has been] short-levied or short-paid or erroneously refunded as referred to in sub-section (5) of section 11A, the person who is liable to pay duty as determined under sub-section (10) of section 11A shall also be liable to pay a penalty equal to fifty per cent of the duty so determined; (c) where any duty as determined under sub-section (10) of section 11A and the interest payable thereon under section 11AA in respect of transactions referred to in clause (b) is paid within thirty days of the date of comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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