AP STEELS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This is an appeal filed by the Assessee, i.e., A.P. Steels against the judgment and order dated 22-6-2015, passed by the Customs, Excise and Service Tax Appellate Tribunal (in short, "the Tribunal"). 1. 1. By virtue of the said appeal, the Tribunal has allowed the Revenue's appeal on the issue pertaining to penalty. The Revenue had assailed the order passed by the Commissioner of Central Excise (Appeals) [in short, "the Commissioner (Appeals)] dated 31-5-2010, in an appeal, to the Tribunal, on a singular ground, which is, the direction contained therein, whereby, an option was given to the Assessee to pay penalty equivalent to 25% of the duty, so determined by the Adjudicating Authority, albeit, within a period of thirty (30) days. In other words, the fact that the Commissioner (Appeals) had reduced the quantum of penalty to 25% of the duty payable by the Assessee, provided the said sum was paid within a period of thirty (30) days, had caused grievance to the Revenue.

(2.) It was the contention of the Revenue before the Tribunal that this option could not have been given by the Commissioner (Appeals), as it was a case of clandestine removal of goods. 2. 1. The Tribunal, via the impugned judgement, has accepted the stand of the Revenue and, accordingly, reversed the order of the Commissioner (Appeals), on this aspect of the matter, by relying upon the judgement of the Bombay High Court in the matter of : Commissioner of Central Excise and Customs, Aurangabad v. V.V. Patil S.S.K. Limited, 2007 (215) E.L.T. 23 (Bom.). 2. 2. The Assessee, being aggrieved, has preferred an appeal to this Court. 2. 3. The instant appeal was admitted on 29-1-2016, when, the following questions of law were framed for consideration by this Court :

(3.) In order to adjudicate upon the appeal, the following broad facts are required to be noticed : 3. 1. The Assessee is in the business of manufacturing CTD Bars of various kgs., which fall under Heading No. 7214 10 90 of the First Schedule to the Central Excise Tariff Act, 1985. Evidently, it had cleared/removed some goods clandestinely. 3. 2. Accordingly, the Revenue served upon the Assessee a Show Cause Notice dated 20-8-2008 (hereafter referred to as, "SCN"). 3. 3. The SCN, as indicated above, alluded to the fact that the Assessee had removed CTD Bars clandestinely, during the period spanning between January, 2007 and January, 2008. The allegation was that the said removal was made with the intent to evade payment of excise duty. 3. 4. Upon adjudication, the demand raised via the SCN was confirmed vide order dated 15-5-2009. As a matter of fact, this was a common order, which confirmed the assessment made, not only against the Assessee, but also its Manager, one, Mr. D. Purushothman. 3. 5. We may only note that D. Purushothman, lost right upto the Tribunal, and had, consequently, preferred an appeal with this Court, which was numbered as : C.M.A. No. 101 of 2016. The said appeal has been dismissed as not pressed, by a separate order passed by this Court, today. 3. 6. Continuing with the narrative, the Order-in-Original, insofar as the Assessee was concerned, confirmed the demand not only qua duty, but also vis-a-vis penalty and interest. Since, the Assessee had paid, out of the total demand of Rs. 12,53,255/-, which included Education Cess and Secondary and Higher Education Cess, a sum of Rs. 6,00,000/- prior to the issuance of SCN, the said amount was adjusted. We are informed that after the issuance of SCN, a further sum amounting to Rs. 6,53,684/- has been paid to Revenue. The said amount also stands adjusted towards demand raised against the Assessee. This fact is not disputed before us, by the learned counsel for the Revenue. 3. 7. Be that as it may, we may also note that insofar as penalty was concerned, the Order-in-Original imposed the penalty equivalent to the demand, i.e., a sum amounting to Rs. 12,53,255/-. 3. 8. Being aggrieved, the Assessee carried the matter in appeal, and as indicated at the outset, the Commissioner (Appeals) confirmed the order of the Adjudicating Authority, save and except to the extent it pertained to imposition of penalty. The Commissioner (Appeals), as alluded to above, accorded an option to the Assessee of paying the penalty equivalent to 25% of the duty imposed, provided the same was paid within thirty (30) days of communication of the order passed by him. Admittedly, the Assessee has paid the penalty amount, in terms of the option granted by the Commissioner (Appeals). 3. 9. The Revenue, as indicated right at the outset, aggrieved by this option of reduced penalty amount, carried the matter in appeal. The Tribunal, as noticed above, ruled in favour of the Revenue.