TMI Blog2015 (9) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... the same clearance was admitted by Shri D.K. Mattoo, Partner of the appellant firm. These details were elaborated in the impugned order-in-appeal also. The appellant s plea that preparation of different sets of original duplicate and triplicate or quatriplicate is only a procedural lapse is not at all tenable. The single clearance document having different factual details in original and triplicate cannot be considered as procedural lapse. The idea behind such act is to represent the price and Central Excise duty differently to the buyer. This is further corroborated by the fact that the appellant were also supplying oil filters to M/s Escorts Ltd. (CTD Division, Faridabad) who were availing Modvat credit and in that case, the appellant rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8421.00 of the Central Excise Tariff Act. In August 1998, the Central Excise officers conducted certain verifications in the factory premises of the appellant. On completion of the investigation, the show cause notice dated 2/2/99 was issued. The notice demanded Central Excise duty of ₹ 5,21,360/- in terms of Section 11A and 11D of the Central Excise Act, 1944. Notice also proposed confiscation of goods valued ₹ 1,50,840/- and a tempo van valued at ₹ 2,50,000/- apart from penalties. The issue involved is that the appellant has been paying Central Excise duty with concessional rate and whereas collected the full rate of excise duty from their buyers resulting in collection of excess amount towards excise duty and retaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-original except for confiscation of tempo. 3. The appellant is before us against the said Commissioner (Appeals) order. The learned Counsel for the appellant contested the applicability of Section 11D to their case. He pleaded that Section 11D will be applicable only when any amount is collected by the appellant representing Central Excise duty and not paying the same to the Government. It is not established by the Department that they have represented and collected any excise duty in excess of amount paid to the Government, from their buyers. They have paid applicable duty and collected the same from their buyers. The agreement for supplying oil filters is on cum-duty basis. Regarding confiscated of goods loaded in the tempo ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deposit to the Government. The plea of the appellant is that in all inclusive price purchase order they have only charged concessional rate of excise duty which they have deposited with the Government. However, the facts of the case as revealed from the records indicate that the rate mentioned in the purchase order is per piece price + Central Excise duty of 10% or 13%. It is apparent that maintenance of two sets of same invoice as explained by learned AR and admitted by the appellant is a clear indication of method followed by the appellant for collecting extra amount in the name of Central Excise duty form their buyers. In this regard reliance can be placed on the facts corroborated by the Chief Manager of Escorts Ltd. (buyers) in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit of the Central Government in terms of Section 11D of the Central Excise Act, 1944. It is apparent that the appellant made documentation deliberately to this end and as such are liable for penalty under Rule 173Q. 6. Regarding confiscation of the goods loaded into tempo, we find the same was in the factory premises and the confiscation was apparently ordered on the grounds of incomplete particulars in the records and discrepancy between the copies of invoice. We find since the goods are still in the factory premises and the documentation were required to be completed at the time of clearances, there is no sufficient cause to order the confiscation of said goods. Accordingly, we set aside that portion of impugned order regarding confis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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