COMMISSIONER OF CENTRAL EXCISE. Vs. GENEVA FINE PUNCH ENCLOSURES LTD.

JUDGEMENT

(1.) Sri Harish, the learned Counsel is permitted to file power for the Respondent.

(2.) This is an appeal by the revenue challenging the order passed by the tribunal, who in turn set aside the order passed by the Revisional Authority, which had imposed the penalty after setting aside the order of the Original Authority.

(3.) The Assessee is a manufacturer of sheet metal components, parts of medical equipment and fitness equipment falling under CSH 8537.00, 9033.00 and 9506.22 respectively of the First Schedule to the Central Excise Tariff Act, 1985. During the investigation, it was found that the Assessee had cleared the raw materials and semi finished goods for job work to various job workers during the period from July, 2001 to June, 2002 and they did not receive them back after completion of job work even after the lapse of the stipulated period of 180 days and that the Assessee did not reverse the appropriate duty amount payable on these semi-finished raw materials sent for job work as stipulated under the CENVAT Credit Rules. They also cleared excisable goods for testing, inspection and approval, etc., and certain items for replacement without payment of Central Excise Duty during the period April, 2002 to August, 2003. They also sent excisable goods as replacement sample supply, short supply, development sample and approval, fitness test, inspection, etc., during the period from September 2001 to November 2003 without payment of Central Excise Duty. They also raised debit notes towards the rejection of excisable goods but did not reverse the appropriate Central Excise duty payable on these rejected goods on which CENVAT Credit has been availed by them. Therefore, the total liability of the Assessee on the entire goods worked out to Rs. 2,61,028/-. On being pointed out, the Assessee paid the said duty and also paid the interest there on. Thus, the Assessee voluntarily paid the duty and interest and intimated the same with a request to waive the issue of show cause notice. It is, thereafter, a show cause notice came to be issued to the Assessee on 10-3-2005. The Assessee sent a reply contending that they have already paid the duty and penalty and therefore, they are not liable to pay the same. However, the Assessing Authority i.e., Assistant Commissioner, relying on the judgment of the tribunal set out in the order, accepted the case of the Assessee and took note of the fact that even before the issue of show cause notice demanding penalty, they had voluntarily paid the duty and interest and therefore, he did not propose to impose any penalty. Aggrieved by the same the revenue preferred an appeal before the Commissioner of Central Excise (Appeals-I) who interfered with the order passed by the Original Authority and held as these irregularities were noticed in the course of investigation and the Assessee had deliberately evaded payment of duty, it was of the view that "mens rea" was proved and penalty is liable to be imposed, of course a reduced penalty of 25%. Aggrieved by the said order, the Assessee preferred an appeal to the Tribunal. The tribunal following the judgment of the Apex Court in the case of Union of India v. Rajasthan Spinning and Weaving Mills, 2009 238 ELT 3 held as there is no determination of duty liability under the provisions of Section 11A(2) of the Central Excise Act and also that there are no allegations in the impugned notice, the Assessing Authority was justified in not imposing penalty and the Commissioner committed a serious error in interfering with the order and set aside the order of the Commissioner. Aggrieved by the said order, the revenue is in appeal.