CCE SURAT Vs. M/S GOPAL FIBERS

JUDGEMENT

(1.) ON verification of stock during the surprise visit to the factory premises of M/s Gopal Fibers Pvt.Ltd., (Appellant) shortage of textured yarn was noticed. Shri Anand Prakash Bhanwarlal Kalani, the 2nd Appellant and the director of the unit admitted that they had sold the quantity found short without preparation of invoices and without payment of duty. Shri Bhavani Shankar Yadav, a yarn broker and the 3rd Appellant admitted that he has purchased the yarn without invoice. Proceedings culminated into confirmation of demand of duty with interest and penalties on the 2nd and 3rd Appellants. On an appeal filed by them, in the impugned order, the penalty imposed on the 1st Appellant was reduced to 25% subject to the condition that the Appellant discharges the duty liability with interest and penalty to the extent of 25% within 30 days of the order. Revenue is in appeal against this decision. Further, the Commissioner (Appeals) also reduced the penalty on 2nd and 3rd Appellants and Revenue is in appeal contending that maximum penalty may be imposed on both the Appellants. Ld.A.R. submitted that the Director of the Company has clearly admitted that the goods were sold without invoice and without payment of duty and accepted the responsibility and the 3rd Appellant also admitted the purchase of yarn without payment of duty and without cover of the invoice. Both are knowledgeable and both were in the same business and therefore, knowingly they have committed an offence and therefore deserve penalty.

(2.) I have considered the submissions made by ld.A.R. Nobody appeared on behalf of the Respondent and the notice sent has been returned with remark 'not known'. In this case, the Revenue is in appeal on the ground that the Commissioner should not have given the option to pay duty, interest and 25% of the duty towards penalty under Section 11AC which can be given only at the adjudication stage. This Tribunal in the case of Swati Chemicals Industries Ltd. -, 2009 (248) ELT 421 and the Hon'ble Gujarat High Court in the case of CCE Ahmedabad vs. M/s. Akash Fashion Prints Pvt. Limited -, 2009 (239) ELT 439 (Guj.) has taken a view that where the original Adjudicating Authority did not extend such option in writing, option can be given at the appellate stage. Therefore, the appeal filed by the Revenue has no merit and is accordingly rejected.

(3.) IN my opinion, the penalty of Rs. 25,000/ - and Rs. 15,000/ - on the 2nd and 3rd Appellant adjudged in the order of Commissioner (Appeals) is fair and does not require any interference. Accordingly, the appeals filed by the Revenue are rejected.