Cce Vs. Oswal Industries (P) Ltd.

Cce vs Oswal Industries (P) Ltd.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided Mar 28, 2007

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Citation: sooperkanoon.com/45193
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: R Abichandani
Decided On: Mar 28, 2007
Subject: Excise

Case Summary

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

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Cce

Respondent

Oswal Industries (P) Ltd.

Legal References

Reported In: (2007)(117)ECC458

Excerpt

.....1,21,162/- on clearances of 13,328.30 kgs. of knitted acrylic fabrics to their buyers other than the defence. the revenue, therefore, alleged that there was contravention of rules 9, 173f and 173g of the central excise rules, 1944 and that penal action under rule 173q of the central excise rules, 1944, read with section 11ac of the act was called for.3. the adjudicating authority on the basis of the material on record found that the decision of the tribunal in maharashtra fur fabrics v.cce , was reversed by hon'ble the supreme court in cce mumbai v. maharashtra fur fabrics , in which it was held that the assessee was not entitled to the benefit of the notification dated 27.2.1986, as amended, in respect of pile fabrics falling under heading 60.01. the appellate commissioner found that charging of duty was not contested, as the issue was decided against the noticee by the supreme court in maharasthra fur fabrics (supra). it also appears that the noticee did not contest recovery of excess deemed credit availed by them as recorded by the commissioner (appeals) in the impugned order. the commissioner worked out the duty liability by treating total value as cum-duty value. the only challenge by the revenue is against the setting aside of the penalty imposed on the noticee.4. it appears from the record that during the removal period i.e. april 2001 to june 2001, the decision of the tribunal in maharashtra fur fabrcs (supra) stood in favour of the noticee for getting the benefit of the said notification. that decision was subsequently reversed on 24.9.2002. therefore, at the relevant time there was no question of the notice harboring an intention to evade duty, for the simple reason that the decision of the tribunal was in its favour. the commissioner was, therefore, justified in setting aside the penalty on the ground that there was no intention to evade duty on the part of the noticee at the relevant time. there is, therefore, no substance in this appeal and it is.....

Full Judgment

1. The Revenue has preferred this appeal against the order of the Commissioner (Appeals) to the extent that it has set aside the penalty, which was imposed by the original authority against the respondent.

2. It appears from the record, that during the scrutiny of the returns of the noticee that it had not paid a duty amount of Rs. 1,21,162/- on clearances of 13,328.30 Kgs. of knitted acrylic fabrics to their buyers other than the defence. The Revenue, therefore, alleged that there was contravention of Rules 9, 173F and 173G of the Central Excise Rules, 1944 and that penal action under Rule 173Q of the Central Excise Rules, 1944, read with Section 11AC of the Act was called for.

3. The adjudicating authority on the basis of the material on record found that the decision of the Tribunal in Maharashtra Fur Fabrics v.CCE , was reversed by Hon'ble the Supreme Court in CCE Mumbai v. Maharashtra Fur Fabrics , in which it was held that the assessee was not entitled to the benefit of the notification dated 27.2.1986, as amended, in respect of pile fabrics falling under Heading 60.01. The Appellate Commissioner found that charging of duty was not contested, as the issue was decided against the noticee by the Supreme Court in Maharasthra Fur Fabrics (supra). It also appears that the noticee did not contest recovery of excess deemed credit availed by them as recorded by the Commissioner (Appeals) in the impugned order. The Commissioner worked out the duty liability by treating total value as cum-duty value. The only challenge by the Revenue is against the setting aside of the penalty imposed on the noticee.

4. It appears from the record that during the removal period i.e. April 2001 to June 2001, the decision of the Tribunal in Maharashtra Fur Fabrcs (supra) stood in favour of the noticee for getting the benefit of the said notification. That decision was subsequently reversed on 24.9.2002. Therefore, at the relevant time there was no question of the notice harboring an intention to evade duty, for the simple reason that the decision of the Tribunal was in its favour. The Commissioner was, therefore, justified in setting aside the penalty on the ground that there was no intention to evade duty on the part of the noticee at the relevant time. There is, therefore, no substance in this appeal and it is hereby dismissed.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Cce vs Oswal Industries (P) Ltd. Same Subject Excise Same Judge R Abichandani