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TMI Blog2024 (12) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... EF JUSTICE ALOK ARADHE AND HON BLE SRI JUSTICE J. SREENIVAS RAO For the Petitioner: B. Chandrasen Reddy, Advocate. For the Respondent: Bathula Raj Kiran Senior SC for GST, Advocate. JUDGMENT (PER THE HON BLE SRI JUSTICE J. SREENIVAS RAO) Heard Mr. Chanakya Basa, learned counsel for the appellant. No representation on behalf of the respondent. 2. This appeal under Section 35G of the Central Excise Act, 1944, is directed against the order dated 02.08.2007 in Appeal No. E/970 of 2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bangalore (hereinafter referred to as, the Appellate Tribunal ). 3. The following substantial question of law arises for consideration in this appeal: Whether the finding recorded by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bangalore that assessee is liable to pay penalty suffers from the vice of non-application of mind and is perverse? 4. Facts giving rise to filing of the appeal in nutshell are that the appellant and M/s. Gautam Tincans Other Metal Works (for short, M/s. Gautam Ticans ) were engaged in the manufacture of metal containers. The Officers of the Central Excise, Anti-Eva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11AC of the Central Excise Act, 1944 ; and directing the appellant to pay interest under Section 11 AB of the Central Excise Act, 1944 at the prescribed rate on duty amount to Rs. 19,12,685/- demanded under Section 11A of the Central Excise Act, 1944. 7. The appellant challenged the aforesaid order dated 30.10.2000 before the Appellate Tribunal and the Appellate Tribunal was pleased to pass the final order No.846-849 dated 05.05.2004 remanding the matter to the original authority for re-quantification of the duty amount chargeable from the appellant after giving abatement of duty already paid by M/s. Gautam Tincans from the total duty liability fixed on the appellant for 15 kg. tins manufactured in their factory; re-quantification of penalty imposed on the appellant under Section 11AC of the Central Excise Act, 1944 and also under Rule 173Q of the Rules ; after re-determining the duty liability on the appellant, and interest under Section 11 AB to be demanded on the duty short paid for a period after 28.09.1996. 8. Pursuant to the above said order, the Commissioner after re-considering the contentions of the respective parties and after verification of the records, re-determined t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the progressive value of M/s. Kamal so as to remain within the limits of SSI exemptions and to avail concessional rates of duty as provided in Notification No's. 1/93-CE dated 28.02.1993 and 38/97-CE dated 27.06.1997. 14. Thereafter, the Commissioner had issued show cause notice dated 30.03.1999 to the appellant along with M/s. Gautam Tincans and two others directing it submit explanation as to why: i) an amount of Rs. 39,59,368/- towards the Central Excise duty (differential duty as shown in the Annexure II to VI) payable by M/s. Kamal on the 15 kgs. tins manufactured and cleared to oil and vansapathi industries under the invoices of M/s. Gautam, should not be levied and paid by them under Rule 9 (2) of Central Excise Rules, 1944, read with proviso to sub-section (1) of Section 11A of Central Excise Act, 1944. (The details are incorporated in the annexure to this notice). ii) Penalty equivalent to the Central Excise duty not paid should not be imposed on them under Section 11AC of Central Excise Act, 1944 and also interest should not be demanded from them under Section 11 AB of Central Excise Act, 1944. iii) See amendment dt. 11.05.2000. 15. Pursuant to the said show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of duty already paid by M/s. Gautam from the total duty liability fixed on M/s. Kamal for 15 kg. tins manufactured in their factory; ii) re-quantification of penalty imposed on M/s. Kamal under Section 11AC of the Central Excise Act and also under Rule 173Q of the Central Excise Rules, 1944; iii) interest under Section 11 AB to be demanded on the duty short paid for a period after 28.09.96 after redetermining the duty liability on M/s. Kamal. Further, the CESTAT has set aside the penalty of Rs.2,00,000/- that was imposed on Shri Padam Raj Jain under Rule 209A. 17. Thereafter, the Commissioner after hearing the parties and after due verification of the records passed the order on 29.07.2005, which is extracted below for the facility of reference: i) Under Rule 9 (2) of the Central Excise Rules, 1944, read wise proviso to sub-section (1) of Section 11A of the Central Excise Act, 1944, I confirm an amount of Rs. 4,57,644/- (Rupees Four Lakhs fifty-seven thousand six hundred and forty-four only) being the excise duty fraudulently evaded prior to 28.09.1996 and an amount of Rs. 5,95,427/- (Five Lakhs Ninety-Five Thousand Four Hundred and Twenty-Seven only) being the excise duties ..... X X X X Extracts X X X X X X X X Extracts X X X X
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