COMMISSIONER OF CENTRAL EXCISE, VAPI Vs. RAJ INDUSTRIES

JUDGEMENT

(1.) BEING aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. I have heard Shri Sameer Chitkara, learned S.D.R., appearing for the Revenue and Shri K.I. Vyas, learned Advocate, appearing for the respondents.

(2.) COMMISSIONER (Appeals) while disposing of the appeal filed by the respondent has observed that as the appellants have already paid the duty along with interest and 25% of penalty within a period of thirty days from the date of receipt of the order the remaining penalty is to be set aside. As against the above, Revenue has relied upon the Honble Supreme Courts judgments in the case of Union of India v. Dharmendra Textile Processors reported in 2008 (231) E.L.T. 3 (S.C.). However. I find that Commissioner (Appeals) has not lowered penalty under Section 11AC but has invoked first Proviso to Section 11AC which lays down that in case 25% of penalty is deposited within a period of thirty days from the date of communication of the order, the balance penalty is not to be uphold. As such I do not find any infirmity in the view adopted by Commissioner (Appeals) as regards the main unit M/s. Raj Industries is concerned.

(3.) THE Appellate Authority has further set aside the penalties imposed upon the partner, executive and authorized signatory of the firm on the ground that Rule 13 of Cenvat Credit Rules does not provide for imposition of personal penalty, as held by the Tribunal in the case of Scor Tour Impex [2006 (200) E.L.T. 273 (Tri. -Del.)]. Apart from the above fact I find that the allegations against M/s. Raj Industries were wrongful availment of Cenvat credit without actually receiving the inputs. The Larger Bench of the Tribunal in the case of Steel Tubes [2007 (217) E.L.T. 506 (Tribunal -LB)] has held that penalties cannot be imposed without actually dealing with the goods. As such on this short ground itself I find no reasons to interfere in the impugned order of Commissioner (Appeals). The appeals filed by the Revenue are accordingly rejected.