Decided on January 12,2015

Asha Telecom P. Ltd. Appellant
Commissioner Of Central Excise Delhi -Iv Respondents


Ashok Jindal, J. - (1.)APPELLANT is in appeal against the impugned order wherein mandatory penalty under section 11AC of the Act has been confirmed against them.
(2.)THE brief facts of the case are that on 18.3.2010, the investigation was conducted at the factory of the appellant and shortage of inputs was found. The appellant explained the shortage as due to rusty inputs they sold the rusty inputs in the market without payment of duty. In these circumstances, a show cause notice dated 28.2.11 was issued to the appellant to appropriate duty on the inputs cleared without payment of duty and also proposing interest and levy of penalty. The show cause notice was adjudicated and demand of duty confirmed and appropriated and demand of interest was also confirmed and penalty equal to the duty involved was also imposed on the appellant under section 11AC of the Act. On appeal before the Commissioner (Appeals), the adjudication order was confirmed. Aggrieved from the said order, appellant is before me.
Learned counsel for the appellant submits that initially, investigating was conducted in their factory on 10.4.2009, a show cause notice was issued by invoking extended period of limitation and the said case was adjudicated and duty demand was paid by them. Therefore, subsequent show cause notice cannot be issued by invoking extended period of limitation, therefore, penalty on the appellant is not imposable. He further submits that Revenue has failed to allege to whom the appellant has sold the goods and the date of removal of the goods. Therefore, penalty is not imposable. He further submits that the entire amount of duty has been paid before issuance of show cause notice, theretofore, penalty is not imposable as held by Hon'ble High Court in the case of Rituraj Pipes & Plastics Pvt. Ltd. [2008 (232) ELT A 26 (Raj)]. Therefore, it is prayed that the impugned order imposing penalty is to be set aside.

(3.)ON the other hand, learned AR opposed the contention of the learned Counsel and submits that show cause notice dated 10.4.09 was issued to the appellant on some other grounds, not for shortage of inputs. Moreover, in this case, the appellant has admitted the shortage of inputs and clearance thereof without payment of duty, therefore extended period of limitation has been rightly invoked by the lower authorities. She further submits that in this case the appellant has paid only duty and not the interest before issuance of show cause notice. Therefore, penalty has rightly been imposed. She further submits that it is not required for the Revenue to find out as to whom the goods were sold and when the sale of goods has been admitted by the appellant that they have cleared the inputs without payment of duty. In these circumstances, it is prayed that impugned order is to be upheld.

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