COMMISSIONER OF C. EX. Vs. GHANSHYAM METAL INDUS.

JUDGEMENT

(1.) THESE are 12 appeals, filed by the Revenue against the Order -in -Appeal Nos. 173 -184/AKG/PCK/2003, dated 5 -5 -2003, by which the Commissioner (Appeals), has set aside the penalty imposed on the respondents.

(2.) WE heard Shri O.P. Arora, learned S.D.R., for the Revenue, and Shri J.S. Agarwal, learned Advocate, for the respondents. Ld. S.D.R. submitted that all the respondents purchase stainless steel flats on payment of duty, which are cut into small pieces and then hot -rolled in the form of patta/patties; that these patta/patties are, further, rolled into cold -rolled patta/patties and, thereafter, circles are cut which are used within the factory for the manufacture of utensils; that these circles are also sold by the respondents in the open market; that the adjudicating authority, under the adjudication orders, confirmed the demand of Central Excise duty in respect of cold -rolled patta/patties and imposed penalties on the respondents. On appeals, filed by the respondents, the Commissioner (Appeals) has upheld the demand of duty, but has set aside the penalties and the interest demanded under Section 11AB of the Central Excise Act following the decision of the Tribunal in the case of Jagatsons Industries v. CCE, New Delhi -III, 2002 (141) E.L.T. 803 (T). The Revenue has contended that the penalty is im -posable as the respondents had suppressed the fact of production of utensils out of the circles in their classification declaration; that the circles, when used cap -lively for the manufacture of utensils, attract nil rate of duty; that the respondents deliberately paid duty on these circles so as to evade payment of duty at patta/patties stage, which is higher; that thus there was a deliberate action on their part to evade payment of duty at patta/patties stage by paying duty at circle stage, which was not payable. The learned Advocate submitted that the duty paid by them on circles as well as on waste and scrap should be adjusted against the duty now demanded on cold -rolled patta/patties; that the penalty is not on any of the respondents in view of the decision of the Tribunal in the case of Jagatsons Industries (supra).

(3.) WE have considered the submissions of both the sides. The issue involved in all these appeals has been duly considered by the Tribunal in the case of Jagatsons Industries (supra) wherein it has been held as under :