TMI Blog2022 (12) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... short-levied or short-paid or the refund is erroneously granted by reasons of fraud, collusion or any willful misstatement or suppression of facts. If these ingredients are not present, penalty under Section 11AC cannot be levied. Since Rule 25 can be invoked subject to the provisions of Section 11AC of the Act, as a natural corollary, the ingredients mentioned in Section 11AC are also required to be considered while determining the question of levying of penalty under Rule 25 of the Central Excise Rules. The imposition of penalty on both the appellants is un-called for - since Appellant No.1, had transferred the semi-finished goods for machining to the Appellant No.2, without permission from the Department, it is a procedural and technical lapse on the part of the appellants and the same requires imposition of token penalty in terms of Rule 27, which provides a maximum penalty of Rs.5,000/-. Accordingly, penalty on both the appellants is reduced to Rs.5,000/- each. Appeal allowed in part. - Excise Appeal No.76595-76596 of 2018 - FINAL ORDER NO.75583-75584/2022 - Dated:- 16-12-2022 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER Shri N.K.Chowdhury, Advocate for the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenance of machine and tools and electricity bills. M/s Mohata Coal Company Pvt. Ltd. was clearing the goods under Annexure III Challan and after receiving the returned goods, the same was supplied to the DSP. 2.2 On 02.06.2016, the Officers of the Department visited the premises of M/s Mohata Coal Company Pvt. Ltd. and found shortages of stock of Wheels Axles. M/s Mohata Coal Company Pvt. Ltd. disclosed the fact that they had sent the said goods to their hired premises i.e. at the premises of M/s Vardhaman Products for undertaking the machining since M/s Vardhaman Products was having the facility of machining of Wheels Axles. The goods were detained and subsequently seized. The seized goods were subsequently released to M/s DSP. The Department was of the view that sending of goods to M/s Vardhaman Products by M/s Mohata Coal Company Pvt. Ltd. without giving intimation to the Department was not proper and amounts to violation of Rule 16B of the Central Excise Rules, 2002. It was also alleged that M/s Vardhaman Products contravened the provisions of Rule 16B of the Rules,2002 since they were receiving the goods for job work purposes but they were not permitted by the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises of M/s Vardhaman Products cannot be said to be un-authorised since it was the hired premises of M/s Mohata Coal Company Pvt. Ltd., who were using Challan No.III for removing and receiving the machined goods. He also stated that the requirement of intimation was not there in Rule 26B of Central Excise Rules, 2002 or in Rule 4(5)(a) of Cenvat Credit Rules, 2004. He vehemently argued that failure on the part of the Appellant in filing an intimation to the Department, can at best be considered as procedural lapse, for which, imposition of penalty under Rule 25 (1) of the Central Excise Rules, 2002, is not justified. 3.2 He further submitted that undisputedly there was permission from the Department granted to DSP for undertaking the job work through M/s Mohata Coal Company Pvt. Ltd. and sending the goods under Challan II and DSP had also given declaration to the Department for paying the duty on receiving the machined goods at the time of clearance. M/s Mohata Coal Company Pvt. Ltd., undisputedly, undertook the job work in their own premises and as well as in their hired premises and removing the goods to the hired premises against Challan III and receiving the machined go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtially processed are sent to a job worker and from there subsequently sent to another job worker and likewise, for further processing, testing, repairing, re-conditioning or for the manufacture of intermediate goods necessary for the manufacture of final products or any other purpose, and it is established from the records, challans or memos or any other document produced by the manufacturer or the provider of output service taking the Cenvat credit that the inputs or the products produced therefrom are received back by the manufacturer or the provider of output service, as the case may be, within one hundred and eighty days or their being sent from the factory or premises of the provider of output service, as the case may be. 4. The Ld.D.R. for the Revenue, justified the impugned the order and prayed that the appeals be dismissed being devoid of merit. 5. Heard both sides and perused the appeal records. 6. I find that there is no evidence on record to show that Wheels Axles (Semi-finished products) sent to the hired premises was with mala fide intention or the appellant was in preparation to remove the goods subsequently. If the same were to be removed subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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