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Tribunal deems Excise Department action of confiscation of good and imposition of penalties as unjustified

CLR Editorial Notes: This case refers to an appeal made by a marble products manufacturer against the Commissioner of Central Excise Jaipur, based on an order on confiscation of excess goods and payment of penalties imposed on non-registration and for redemption of confiscated excess material.  It was appealed, that as per the various circulars of CBEC, the registration should have been granted within a period of 7 days from the date of filing of application. As regards non payment of duty on the excess clearances, they submitted that all the clearances were effected under the cover of their invoices and the duty was to be paid by 31st March as per the provisions contained under Rule 8 of the Central Excise Rules. As such, non-payment on the said goods on the date of visit of officers was not the contravention.


2013-ITS-75-CESTAT-M/s. Shree Aparajita Marbles (P) Ltd. -Vs- Commissioner of Central Excise, Jaipur , Date of decision: 23 /01/2013

IN THE CUSTOMS, EXCISE AND SERVICE TAX

APPELLATE TRIBUNAL, NEW DELHI

PRINCIPAL BENCH, COURT NO. III

Excise Appeal No. 162 of 2010-SM

Excise Misc. Application No. 958 of 2011-SM

Date of Hearing : 27/11/2012

Date of decision: 23 /01/2013

[Arising out of Order-in-Appeal No. 451 (KKG)/CE/JPR-II/2009 dated 4.12.2009 passed by the Commissioner (Appeals), Central Excise, Jaipur]

For approval and signature: Hon’ble Ms. Archana Wadhwa, Member (Judicial)

M/s. Shree Aparajita Marbles (P) Ltd. Appellant

Vs

Commissioner of Central Excise, Jaipur Respondent

Present for the Appellant : Ms. Sukriti Das, Advocate

Present for the Respondent : Ms. Shweta Bector, DR

ORDER No.A/FO/55340/2013-Ex(Br)

MO/55630/2013-Ex(Br)

Per Archana Wadhwa :

1. As per facts on record, appellant is engaged in the manufacture of marble slabs and tiles. Their premises were visited by Anti-evasion team of Central Excise on 20.3.2007 and various records were scrutinised. It was found that total clearance of the appellant had crossed Rs. One Crore and as such, the appellant was required to pay on excess clearance after getting them registered with the Central Excise department. The officers also found the irregular marble slabs and tiles totally valued at Rs.22.95 lakhs approx. involving central excise duty of Rs. 3.82 lakhs which were not accounted for in the statutory records. The same were accordingly, seized.

2. On the above basis, proceedings were initiated against the appellant for confirmation of duty of Rs.84,546/- pertaining to excess clearance. As the said duty was deposited by the appellant, the show cause notice proposed to appropriate the same. The notice also proposed confiscation of the excess found goods along with imposition of penalties upon the appellant. The said Show cause notice resulted in passing of impugned order passed by the original adjudicating authority confirming the demand of Rs.94,989/- and imposing penalties to the extent of 100% under section 11AC. In addition, excess found goods were confiscated with an option to redeem the same on payment of redemption fine of Rs.7 lakhs. Appeal against the above order did not succeed before the Commissioner (Appeals). Hence, the present appeal.

3. The main contention of the appellant is that their factory was visited by the officers on 20.3.2007 and they had already filed an application before the authorities for registration vide their application dated 22.2.2007. As per the various circulars the registration should have been granted within a period of 7 days from the date of filing of application. As regards non payment of duty on the excess clearances, they submitted that all the clearances were effected under the cover of their invoices and the duty was to be paid by 31st March as per the provisions contained under Rule 8 of the Central Excise Rules. As such, non-payment on the said goods on the date of visit of officers was not the contravention.

4. The lower authorities have not accepted the appellants stand of filing of application for registration on 22.2.2007. Though the said application bears the initials of officers receiving the same, I find that the dispute relates to the identity of the said signatures. The lower authorities have held that signatures are not put in by their officers and for the said purpose they have relied upon the report of jurisdictional Central Excise authorities. On the other hand it is the appellants contention that they have filed it in the Range office and the said application bears the signature and it is not for them to establish whose signatures are they.

5. If the appellants have filed an application, as contended by them for registration of their unit, which had crossed the exemption limit, I find that subsequent actions of the Revenue in confiscating the excess found goods and imposing penalties upon them is not justifiable. By extending the benefit of doubt to them on the point of filing of application for registration, I set aside the impugned order and allow the appeal with consequential relief to the appellant.

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