Ashish Engineering Works Vs. Commissioner of Central Excise

Ashish Engineering Works vs Commissioner of Central Excise

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided May 30, 2001

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Citation: sooperkanoon.com/23505
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On: May 30, 2001
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

Land Acquisition

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Ashish Engineering Works

Respondent

Commissioner of Central Excise

Excerpt

.....dated 22.8.1996 of the cumballa hill hospital & heart institute showing sonography of the abdomen does not appear to indicate any abnormality. this sonography report is dated 22.8.1996 i.e., after the date of hearing. in the light of these facts i am unable to accept this contention.3. the next ground is that arun patel, who is the proprietor of the appellant met with a serious accident in 1995-96 leading to closure of the factory for six to seven months. this is entirely irrelevant. duty has been demanded for the goods manufactured in the factory between 1.4.1994 and 8.4.1995. it is not claimed that the factory was closed during this period. it obviously has to be so since the duty had been demanded for the clearance made between this period 10.10.1994 and 20.3.1995. the contention that the appellant was not knowing that the products were dutiable against is unacceptable. the appellant had been manufacturing goods from 1978. the fact that the appellant also recovered the duty in question from the buyers on the finished products in the gate pass also goes against it. if the appellant were under the impression that the goods were exempted, it would have obviously not mentioned that the goods were exempted, it would have obviously not mentioned the duty in the gate passes and recovered it from the buyers.4. the next ground that the appellant subsequently paid the duty is irrelevant. the contention that the payment of duty was not evaded but only delayed verges on dishonesty. the bench specifically asked mr.patel whether he could show that he made the payment voluntarily without the department coming to know of the evasion, he was unable to do so. the contention that he was unable to pay because he had no money. such a course of action totally unacceptable. duty is not to be paid at the whims of the manufacturer. it is clear therefore that there has been calculated deliberate intention to evade duty. in these circumstances i am unable to find any case for.....

Full Judgment

1. This appeal is against the order of the Commissioner of Central Excise, Mumbai. In that order the Commissioner has found that the appellant did not pay the duty on the goods cleared by it between 10.10.1994 and 20.3.1995 despite having collected the duty from the buyers of the goods. She therefore confirmed the proposal contained in the notice demand for duty of Rs. 8.05 lakhs and imposed penalty of Rs.8.05 lakhs on the appellant, ordered confiscation of the land, builing, plant and machinery of the appellant permitting it to be redeemed on payment of fine of Rs. 5 lakhs. She records that the appellant had paid the duty in question prior to passing the order.

2. Mr. Arun Patel, proprietor of the appellant reiterates the argument contained in the appeal. The first ground in the appeal was that the order in question is illegal because it is passed ex-parte. It is not possible to accept that the appellant was not given sufficient opportunity to present its case. The show cause notice was issued on 4.9.1995. By a letter dated 21.10.1995 the appellant requested three months time to file the reply. This request was accepted. The Commissioner records that, despite this extension of time, no reply was filed to the show cause notice. When the case was fixed for hearing on 22.3.1996 adjournment was requested. On 24.7.96 once again adjournment was requested on the ground that the advocate's father had died. The matter was therefore adjourned to 16.8.1996. On that date adjournment was sought on the ground of illness of the counsel. The letter to Commissioner, presumably written by the advocate's office states that he had 'hiatus harnia' but no evidence in support has been produced. A document dated 22.8.1996 of the Cumballa Hill Hospital & Heart Institute showing sonography of the abdomen does not appear to indicate any abnormality. This sonography report is dated 22.8.1996 i.e., after the date of hearing. In the light of these facts I am unable to accept this contention.

3. The next ground is that Arun Patel, who is the proprietor of the appellant met with a serious accident in 1995-96 leading to closure of the factory for six to seven months. This is entirely irrelevant. Duty has been demanded for the goods manufactured in the factory between 1.4.1994 and 8.4.1995. It is not claimed that the factory was closed during this period. It obviously has to be so since the duty had been demanded for the clearance made between this period 10.10.1994 and 20.3.1995. The contention that the appellant was not knowing that the products were dutiable against is unacceptable. The appellant had been manufacturing goods from 1978. The fact that the appellant also recovered the duty in question from the buyers on the finished products in the gate pass also goes against it. If the appellant were under the impression that the goods were exempted, it would have obviously not mentioned that the goods were exempted, it would have obviously not mentioned the duty in the gate passes and recovered it from the buyers.

4. The next ground that the appellant subsequently paid the duty is irrelevant. The contention that the payment of duty was not evaded but only delayed verges on dishonesty. The bench specifically asked Mr.

Patel whether he could show that he made the payment voluntarily without the department coming to know of the evasion, he was unable to do so. The contention that he was unable to pay because he had no money. Such a course of action totally unacceptable. Duty is not to be paid at the whims of the manufacturer. It is clear therefore that there has been calculated deliberate intention to evade duty. In these circumstances I am unable to find any case for reduction of penalty imposed and if at all it should be higher. Nor I am able to accept that this is not case for confiscation of the plant and machinery. If this is not a case for confiscation of plant and machinery it would be difficult to find any case.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Ashish Engineering Works vs Commissioner of Central Excise Same Subject Land Acquisition