Decided on February 26,2015

Das Brothers (Unit -Ii) Appellant
Cce -Kol -Iii Respondents


Dr. D.M. Misra, Member (J) - (1.)THIS is an Appeal filed against Order -in -Appeal No. 217 -218/KOL -III/2011 dated 08.07.2011 passed by the Commissioner(Appeal -I) of Central Excise, Kolkata.
(2.)AT the outset Shri D.K. Saha, Ld. Consultant for the Appellant submits that during a visit by the officers of preventive unit of Kolkata Commissionerate on 28.11.2008 a vehicle intercepted was brought to the factory for verification. On verification of the invoices accompanying the vehicle and the goods loaded in the vehicle certain discrepancies were noticed. Consequently, the officers also carried out physical stock taking of the goods lying inside the factory premises. The officers found unaccounted excess quantity of finished goods lying inside the factory. Consequently, on completion of investigation, a show cause notice was issued proposing confiscation and also recovery of duty against the goods cleared clandestinely.
The Ld. Asstt. Commissioner confirmed the demand and imposed penalty under Section 11AC of Central Excise Act, 1944 read with Rule 25, of Central Excise Rules, 2002 directed confiscation of the goods and vehicle carrying the offending goods. Aggrieved by the said order, the Appellant as well as the owner of the vehicle filed Appeals before the Ld. Commissioner(Appeals). The Ld. Commissioner(Appeals) dropped the proceeding against the vehicle owner, however, confirmed the penalty imposed in the adjudication order against the Appellant. Hence, the present Appeal.

(3.)THE Ld. Consultant further submits that even though in their grounds of Appeal they have questioned the issue of confiscation of the goods, however, for the present purpose the appellant are not interested to press the validity of confiscation. He has confined his argument only to the aspect of penalty imposed under Section 11AC of Central Excise Act, 1944 read with Rule 25 of Central Excise Rules. He has submitted that the Ld. Commissioner(Appeals) has failed to take cognizance of their submission that even though the penalty had been imposed under Section 11AC, however, no option was given to them as laid down in the said statute to pay 25% of such penalty on fulfillment of such conditions as laid down therein. Such an option ought to be allowed to them in view of the judgement of the Hon'ble Gujarat High Court in the case of Commr. Of Central Excise & Customs, Surat -I v. Harish Silk Mills -, 2010(255)ELT 393(Guj.).

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