NATIONAL IMPEX Vs. COMMISSIONER OF CENTRAL EXCISE, DAMAN

JUDGEMENT

(1.) THE appellants are engaged in the manufacture of Made -ups viz. Polyester Knitted Scarfs & Polyester Woven Scarfs falling under Chapter 62 of CETA, 1985. On 5 -9 -2003, they cleared 64,799 Pcs. of Polyester grey Dupattas valued at 25,919.60 USD in DTA against foreign exchange from EEFC account of the buyer i.e. M/s. Almas Textiles, Surat against permission No. KFTZ/100% EOU/II/104/2001 -02/Surat, dated 28 -8 -03. The said consignments were cleared under Central Excise invoices Nos. 74 to 77 all dated 5 -9 -03. They paid Central Excise duty to the tune of Rs. 4,84,379/ - on these clearances. The show cause notice dated 18 -8 -04 issued to the appellants alleging that the appellants have worked out value of clearances by considering exchange rate for 1 USD @ Rs. 44/ - instead of conversion rate applicable for export purpose prescribed @ Rs. 45.65 for Sept.03 vide Notification No. 68/2003 -Cus. (N.T.) dated 26 -8 -03 and further though the appellants mentioned rate of duty @ 44% on the invoices but they have neither worked out nor paid appropriate duty on these clearances. The aggregate duties of Excise @ 43.06% (Customs duty @ 25% + CVD (basic excise duty @ 10% Adv.+ Cess @ 0.05% + SAD on aggregate of value + All duties @ 4% is payable on the above clearances on the correct value of clearances worked out to be Rs. 11,83,230/ -. Hence, the demand of short paid duty to the tune of Rs. 25,120/ - was raised against the appellants. The appropriation of short paid duty from the advance payment of Rs. 2,40,000/ - made vide TR -6 challan No. 2/03 -04, dated 14 -10 -03 was also proposed.

(2.) DEMAND of Rs. 25,120/ - was confirmed by the adjudicating authority along with imposition of penalty of identical amount under Rule 25(1) of Central Excise Rules, 1944 (sic) [2002]. The order passed by the original adjudicating authority was upheld.

(3.) LEARNED advocate appearing on behalf of the appellant is not disputing the duty confirmation, but submits that short duty stand paid on account of non -application of correct rate of exchange of foreign exchange into Indian currency. The same is not on account of any mala fide but is a mistake on the part of the assessee, which do not call for any imposition of penalty.