SURYA ROSHNI LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE appeal arises from order dated 12 -10 -2009 passed by the Commissioner (Appeals), Gurgaon whereby the appeal filed by the appellants was allowed only to the extent of reduction in penalty amount. By order dated 7 -1 -2009, the Joint Commissioner, Rohtak had confirmed an amount equal to 10% of the total price which was Rs. 14,40,045/ - or the value of the goods of Rs. 1,44,00,446/ - cleared without payment of duty and ordered recovery of the said amount under Rule 6(3)(b) of the Cenvat Credit Rules 2004 read with Section 11A of the Central Excise Act, 1944 and had imposed equal amount of penalty and had also ordered recovery of interest.

(2.) THE appellants are engaged in the manufacture of MS pipes and tubes of various quality, sizes and description classifiable under chapter 73 of the Central Excise Tariff Act, 1985. Pursuant to the investigation by the Department, it is said to have been revealed to the Department that the appellants had cleared 419.63 MT of tubes and pipes to SEZ developers during the period from June, 2007 to November, 2007 without payment of excise duty and hence a show cause notice in that regard came to be issued to the appellants on 28 -4 -2008. The same was contested by the appellants without any success. When the matter was carried before the Commissioner (Appeals), there was mere reduction in the penalty amount. Hence present appeal.

(3.) LEARNED DR on the other hand, submitted that at the relevant time the amendment which has been sought to be brought under -C.E. (N.T.), dated 31 -12 -08 was not in force as the said amendment came into force w.e.f. 31 -12 -2008 and, therefore, considering the provisions of law at the relevant time, the appellants were not entitled for the benefit of cenvat credit on account of the goods having been cleared without payment of duty.