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M/s. Himalaya Engineering Company And Shri Rameshkumar C Rajput And Commissioner of Central Excise & S.T., Ahmedabad Versus Commissioner of Central Excise & S.T., Ahmedabad And M/s. Himalaya Engineering Company

2016 (4) TMI 604 - CESTAT AHMEDABAD

Non obtaining of Central Excise registration on reaching full exemption limit of Rs. One Crore - Imposition of penalty under Section 11AC and a separate penalty on partner under Rule 26 of the Central Excise Rules, 2002 on Appellant No.2 - Held that:- We find that the appellant has violated the terms of the said declaration and had not intimated the Central Excise authorities on crossing the exemption limit of ₹ 1 Crore. They had not obtained the Central Excise registration on reaching ful .....

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Central Excise authorities on crossing the exemption limit, and followed the procedures prescribed in this regard as they themselves had solemnly declared to do, such contentions would have had some merit. We find that they were aware of the exemption limit and the procedures to be followed. Therefore, we find force in the contention of the learned Authorised Representative for Revenue that the ingredients for invoking extended period under Section 11A and for imposition of penalty under Sectio .....

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uld not be imposed on Appellant No.2 who is partner of the firm, as penalty has already been imposed on the partnership firm. See Pravin N. Shah vs. CESTAT [2012 (7) TMI 850 - GUJARAT HIGH COURT ] - Appeal No. : E/1552-1553/2008 & E/1579/2008 - Order No. A/10222-10224/2016 - Dated:- 17-3-2016 - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MR. P.M. SALEEM, MEMBER (TECHNICAL) For the Petitioner : Shri M.A. Patel, Consultant & Shri L. Patra, AR. For the Respondent : Shri L. Patra, AR & Shri M.A. P .....

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the levy of duty. Their grievance is against imposition of penalty under Section 11AC on Appellant No. 1, and a separate penalty of ₹ 25,000/- under Rule 26 of the Central Excise Rules, 2002 on Appellant No.2. 4. Briefly stated, the reported facts of the case are that the Appellant No. 1 are engaged in manufacture of goods falling under Chapter 84 of the schedule of Central Excise Tariff Act, 1985. The appellant No. 2 was the person responsible to look after the entire business of the appe .....

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year of 2004-05, Appellant No. 1 had exceeded the exemption of aggregate value of clearance of rupees one Crore as specified in the Notification No. 8/2003-CE dated 01.3.2003 and in spite of the above fact, appellant No.1 had neither obtained Central Excise Registration nor paid duty on the goods cleared in excess of exemption limit specified in the aforesaid notification. It was noticed that total value of goods cleared by the appellant No. 1 during the financial year 2004-05 (up to 07.3.2005) .....

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006 was issued, which was adjudicated by the Joint Commissioner of Central Excise confirming the duty liability of ₹ 9,02,563/- along with interest and imposition of equivalent penalty of ₹ 9,02,563/- under Section 11AC on Appellant No.1. A penalty of ₹ 25,000/- was also imposed on Appellant No. 2 under Rule 26 of the of the Central Excise Rules, 2002. On appeal, the Commissioner (Appeals) by the impugned order dated 25.09.2008 modified the adjudication order to the extent the .....

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also argued that as per Central Excise procedures, they had time to file Central Excise Returns and pay duty till the end of March 2005. He submits that they had no intention to evade duty and therefore, imposition of penalty under Section 11AC is not warranted in their case. He also contended that extended period under Section 11A is not invocable in this case. He further contends that since penalty has been imposed on the partnership firm, separate penalty on the Appellant No.2, who is a part .....

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as applicable on clearance thereafter. The appellant failed to do so and continued to clear the goods without intimation to the Central Excise jurisdictional officers and without obtaining Central Excise license and without payment of duty. Only due to the visit of the officers to the premises of the appellant on 07.03.2005 it came to light that the appellant had cleared goods valued at ₹ 55,30,414/, over and above the exemption limit of Rs. One Crore, during 31.12.2004 to 06.03.2005. If t .....

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deration of the submissions made by both sides and perusal of the records, we find that Appellant No.1 had filed the following declaration dated 15.04.2004 with Central Excise authorities, in accordance with the procedure prescribed in respect of SSI exemption under Notification No. 8/2003-CE dated 01.3.2003:- Date - 15.04.2004 (F.Y.2004-2005) To The Assistant Commissioner/ Deputy Commissioner, Central Excise, I/We, M/s. Himalaya Engineering, plot No.38,GIDC,Phase-III,Mehsana, Gujarat. declare t .....

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o duty. I/We undertake to maintain such records and follow such procedure as may be prescribed by the Commissioner in relation to the exempted goods. I/We also undertake to intimate any change in the information furnished in the said Schedule. THE SCHEDULE 1. ….. 2….. 3. …. 4. ….. 5. Value/quantity of the goods cleared during the preceding financial year. 2003-2004 ₹ 83,13,212/- 6. Value/quantity of the goods estimated to be cleared in the current financial year .....

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f Rs. One Crore and had cleared goods without payment of duty. We find that they continued to clear the goods without payment of duty from 01.01.2005 to 07.03.2005 (till the visit of the officers). We do not agree with the contention of the learned Consultant that they had time till the end of March 2005 to file the Central Excise Returns and pay Central Excise duty. The said time limit is for a Central Excise Registered Licensee. If the appellant had intimated the Central Excise authorities on .....

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