COMMISSIONER OF CENTRAL EXCISE, COMMISSIONER, DELHI III, GURGAON Vs. KAP CONES, UDYOG VIHAR, PHASE-V, GURGAON

JUDGEMENT

(1.) Leave granted.

(2.) The respondent, a proprietary concern having two factories; one situated at 449A, Udyog Vihar, Phase-V, Gurgaon and the second at Plot No. 29, Secot-5, IMT Manesar, Gurgaon, is engaged in manufacture of paper cones to wrap ice-cream cones and cone biscuits and the said items are chargeable to central excise duty. A proceeding was initiated against the firm for filing of input duty credit, capital goods duty credit and further clandestine removal of the finished product. On 15.7.2011, the Commissioner adjudicated the matter and disallowed the Cenvat credit taken and confirmed the demand as indicated in the show cause notice at the time of commencement of the proceeding invoking the extended period under the proviso to Section 11A(1) of the Central Excise Act, 1944 (for brevity, "the Act") and directed for confiscation of the seized goods. The adjudicating authority, as the factual matrix would uncurtain, imposed penalty of Rs.50 lakhs on the proprietor of the firm in exercise of the power under Rule 15 of the Cenvat Credit Rules, 2004. The order passed by the adjudicating Commissioner was received by the concerned jurisdictional Chief Commissioner on 18.7.2011. After receipt of the said order, the Committee of the Chief Commissioners reviewed the same and expressed the opinion that the decision taken by the Commissioner was fallacious inasmuch as he had not imposed penalty under Section 11A(1) which was imposable; and that the Commissioner had overlooked the imposition of penalty on the Manager and Accounts Manager of the respondent firm under Rule 26 of the Central Excise Rules, 2006, which was required in the facts and circumstances of the case. The review order no. 35 of 2011 was issued on 25.10.2011 under Section 35-E(1) of the Act and a direction was issued to the Commissioner to file appropriate application before the Customs Excise and Service Tax Appellate Tribunal (for short, "the tribunal) under Section 35-E(4) for correct determination. The order passed by the Committee was received by the Commissioner on 31.10.2011.

(3.) In accordance with the order passed by the Committee of Chief Commissioners, the Commissioner filed an application on 16.11.2011 before the tribunal under Section 35-E(4) within one month from the date of communication of the order of review. Be it noted, along with an application filed under Section 35-E(4), an application for condonation of delay was filed for condoning 8 days delay that occurred in review of the order of the Commissioner by the Committee of Chief Commissioners, for the Commissioner's order had been received by the reviewing authority on 18.7.2011 and the review order which was required to be passed within three months from the date of communication was passed after eight days of expiry of the period.