SARVOTTAM ROLLING MILLS P. LTD. Vs. COMMISSIONER OF C. EX.
LAWS(CE)-2015-6-46
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on June 15,2015

Sarvottam Rolling Mills P. Ltd. Appellant
VERSUS
COMMISSIONER OF C. EX. Respondents

JUDGEMENT

ASHOK JINDAL, J. - (1.)The applicant has filed an application of rectification of mistake in the order passed by this Tribunal on 21 -10 -2014. Heard the ld. Counsel for the applicant who submits that the applicant has contested the liability of duty on account of non -accountal shortage of goods found at the time of inspection while weighment was done on estimate basis. It is also contested that in the impugned order when the ld. Commissioner has held that there is no tangible evidence of clandestine removal of goods. Therefore, provision of Sec. 11AC is not invocable and penalty was reduced to Rs. 50,000/ - from Rs. 3,78,619/ -. The said findings of the ld. Commissioner (A) have not been contested by the Revenue. Therefore, the findings of this Tribunal while passing the order to remand the matter to ld. Commissioner (A) to reconsider the provisions of law relating to penalty and pass appropriate order granting fair opportunity of hearing to the appellant is not correct. As the issue of penalty was not in question, in fact, the issue before this Tribunal was that there is no evidence of clandestine removal of goods. Therefore, duty as well as penalty is not imposable.
(2.)Heard the ld. Counsel for the appellant and perused the records.
(3.)On perusal of the records I find that this Tribunal has passed the following order:
"It is contested by the ld. Counsel that when Commissioner (Appeals) has reduced penalty from Rs. 3,78,619/ - to Rs. 50,000/ - this clearly shows that there is no clandestine removal of the goods in question.

2. Record reveals that ld. adjudicating authority penalized the appellant under Rule 25 read with Sec. 11AC of Central Excise of 1944. Rule 25 of Central Excise Rules, 2002 deals with circumstances in which penalty can be imposed taking shelter of Sec. 11AC of Central Excise Act, 1944. The present case is a case which is concerned for non -accountal of excisable goods manufactured or stored by the appellants. It is in respect of shortage noticed in the course of inventory during investigation. When such is the event this is a case inviting penal provision of Sec. 11AC with the aid of Rule of 25 Central Excise, 2002. Therefore, the appeal is remanded to the Commissioner (Appeals) to reconsider the provision of law relating to penalty and pass appropriate order granting fair opportunity of hearing to the appellant.

3. Appeal is disposed remanding the matter."

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