TMI Blog2023 (1) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty under Section 11AC read with Rule 25 is set aside. The appeal is allowed. - Excise Appeal No.54217 of 2014-SM - FINAL ORDER NO. 50020/2023 - Dated:- 10-1-2023 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Sh. Jitin Singhal, Advocate for the appellant Sh. Mahesh Bhardwaj, Authorised Representative for the respondent ORDER The issue in this appeal is whether demand of duty Rs.3,23,761/- have been rightly made for the period July, 2010 to October, 2010, with penalty under Section 11AC read with Rule 25. 2. Brief facts of the case are that the appellant is engaged in the trading and manufacture of aluminium circles falling under Chapter 76 of the First Schedule to the Central Excise Tariff Act, 1985 and were registered with the Department. On the basis of an intelligence, a simultaneous search was conducted by the officers of Central Excise on 16.03.2011 at the factory premises of the appellant and residential premises of Sh. Balbir Prasad Gupta and Jai Prakash Sharma (Partners of the appellant). During search at the factory premises of the appellant, the department found finished goods and raw materials without any documentary evidence. Thus, the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax registration from April, 2010. Further, stated that from November, 2010, Central Excise registration was taken and production started in the month of November, 2010. It was further stated that they are paying Central Excise duty under Compounded Levy Scheme (CLS) and their production of aluminium circle is around 1 M.T. per day. They also stated that they have been filing sales tax return regularly. 4. Search was also conducted at the residential premises of the other Partner Sh. Balbir Prasad Gupta on the same date, who inter-alia stated that they have started the firm in the year 2008. Initially the firm was located at B-68/2, Wazirpur Industrial Area, Delhi-52. Subsequently, they have shifted to C-59/1, Wazirpur Industrial Area, Delhi-52 in November, 2009. He also stated that they are working under CLS as per the Notification No. 17/2009 and are paying duty @ Rs. 12,360/- per cold rolling machine per month. They have also stated that there have one hot rolling and cold rolling machine installed in their factory. They are paying duty on CLS basis. They had also taken Central Excise registration in the month of November, 2010. Further stated that they are issuing commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8,27,980/- with further proposal to impose penalty under Rule 25 read with Section 11AC of the Act. Personal penalty was also proposed on the Partner Sh. Balbir Prakash Gupta and Sh. Jai Prakash Sharma under Rule 26. 8. The second show cause notice dated 27.02.2013 was issued demanding Central Excise duty of Rs. 10,17,041/- for the period July, 2010 to May, 2011. In this show cause notice, it is observed that the appellant appears to have purchased aluminium circles weighing 34,184.80 kg. for trading purpose during the period 02.07.2010 to 06.10.2010 based on the documents available on record. In his further statement Sh. Balbir Prakash Gupta, Partner of the appellant inter-alia stated that after taking the premises on rent they have purchased second hand machine in July, 2010 from M/s Kailash Metal Co., Sadar Bazar, Delhi-06 for which payment was made by cheque. After purchase of the circle manufacturing machine in July, 2010 they have taken fine in installation and test production, which is evident from the bills raised during the period 03.08.2010 to 09.09.2010 for Rs.69,511/- After this period they have obtained Central Excise registration. It was also stated that they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority to deny of the same. Further, the trading turnover supported by the purchase and sales invoices and also supported by the VAT return, rejection is bad in the eyes of law. It was also urged that seizure of finished goods/ aluminium circles inside the factory premises of the registered assessee is bad in law. Thus, the whole exercise of seizure and confiscation is bad. 10. Learned Commissioner (Appeals) observed that the Revenue has alleged non-compliance of the provisions of CLS as per Notification No. 17/2007 which according to the appellant is venial lapse. Further, admittedly appellant has paid excise duty under CLS from November, 2010 to March, 2011. Further Revenue have refused to give the benefit of CLS for want of application by the appellant-assessee. Ld. Commissioner took notice of para 7 of the said notification which provides for condonation in case of failure to apply and gives discretion to the adjudicating authority, who can condone the delay on sufficient reason. Ld. Commissioner was pleased to allow the benefit of CLS as the appellant has taken effective steps by depositing duty as per CLS. Further, as the duty was paid under CLS it was held that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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