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2015 (11) TMI 710 - AT - Central ExciseBenefit of cum-duty-price - CENVAT Credit - Imposition of penalty - Held that:- Tribunal in the case of M/s Mamta Silk Mills Pvt. Ltd (2015 (11) TMI 251 - CESTAT AHMEDABAD) on the identical situation following the decision of the Hon ble Supreme Court extended the benefit of cum-duty-price. In the case of Dugar Tetenal India Ltd. (2008 (3) TMI 50 - SUPREME COURT ), the Hon ble Supreme Court held the cum-duty price would be extended even in the case of extended period of limitation. The case of Amrit Agro Industries Ltd. (2007 (3) TMI 14 - SUPREME COURT OF INDIA), as relied upon by the Learned Authorised Representatives in the context of the assessee cleared the goods, during the relevant period on the basis of exemption notification. Hence, the said case law would not be applicable in the present case. Further, the Tribunal in the case of Bhawani Weaving Factory (2008 (3) TMI 227 - CESTAT NEW DELHI) held that once duty is demanded the assessee, entitled to CENVAT credit benefit. It is a clear case of clandestine removal of the goods. It is noticed that the appellant No. 2 had indulged for removal of the goods without payment of duty, which was detected by the Central Excise Officer. The main contention of the Learned Advocate is that there is no proposal for confiscation of the goods, and therefore, penalty under Rule 26 cannot be imposed. On close reading of Rule 26 of the Central Excise Rules, 2002, we are unable to accept the contention of the learned advocate. The words “in any other manner deals with, which he knows or has reason to further are liable to confiscation” make it clear that if, the goods cleared without payment of duty, liable to confiscation, the penalty would be imposed on him. In the present case, the appellant No. 2 knowingfully well cleared the goods without payment of duty, and the penalty under Rule 26 is justified. However, we agree with the Learned Advocate that the quantum of the penalty on Appellant No. 2 is excessive. - Decided partly in favour of assessee.
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