Apar Industries Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. the appellants are a company engaged in the manufacture of aluminium and articles thereof at their factory at dharmsingh desai industrial park, village bahutha, taluk savli, dist. vadodara in gujarat state.they supply various quantities of their products, aluminium conductors, to various locations at patna, secundrabad and bangalore. after filing classification declaration and claiming benefit under notification no.108/95-ce in respect of each of such supplies made, certificates in terms of the said notification issued by the project manager, power grid corporation of india ltd. and countersigned by the addl.secretary, ministry of power, government of india, were also obtained and signed, evidencing that the material was supplied and appropriate certificates were issued by the general manager of power grid corporation of india ltd., duly endorsed by the addl. secretary, ministry of power, government of india, were also supplied.notwithstanding the above and also the fact that there was no stipulation of any time limit within which the world bank loan had to be obtained by the said power grid corporation india ltd., a show cause notice dated 24.06.2003 was issued by the commissioner of central excise & customs, vadodara, requiring the appellants to make an amount of rs. 10,34,27,684/- as excise duty in respect of the clearance effected. the commissioner, vide the order impugned, ordered the appropriation of the amount of rs. 3,17,75,620/- paid by power grid corporation of india ltd. on account of the appellants and confirmed the demand and imposed a penalty of equivalent amount on the assessee and on general manager (commercial), a penalty of rs. 10,00,000/- was imposed, along with penalties of power grid corporation of india ltd. hence these appeals.2. the appellants were heard and on considering that in any event the entirety of the demand has been discharged as would be evident by the certificates carefully annexed and, therefore, the matter is to be remanded back to the commissioner to verify and confirm that each of the payment was made by power grid corporation of india ltd. and that no amount, therefore, is due from any person. the demand, in this case, will have to be reworked out.3. in view of the above, if the amount of duty as soon as been discharged, the question of penalty will have to be reconsidered in the light of the facts of this case. for this purpose, the appeals are to be allowed as remand to the original authority to re-determine the issue of duty demands, if any, required to be determined in view of the certificates as also the question of penalties as arrived at in view of the facts of this case and the submission which the appellants may opt to make before the id. commissioner.

Judgment:
1. The appellants are a company engaged in the manufacture of aluminium and articles thereof at their factory at Dharmsingh Desai Industrial Park, Village Bahutha, Taluk Savli, Dist. Vadodara in Gujarat State.

They supply various quantities of their products, aluminium conductors, to various locations at Patna, Secundrabad and Bangalore. After filing classification declaration and claiming benefit under Notification No.108/95-CE in respect of each of such supplies made, certificates in terms of the said Notification issued by the Project Manager, Power Grid Corporation of India Ltd. and countersigned by the Addl.

Secretary, Ministry of Power, Government of India, were also obtained and signed, evidencing that the material was supplied and appropriate certificates were issued by the General Manager of Power Grid Corporation of India Ltd., duly endorsed by the Addl. Secretary, Ministry of Power, Government of India, were also supplied.

Notwithstanding the above and also the fact that there was no stipulation of any time limit within which the World Bank loan had to be obtained by the said Power Grid Corporation India Ltd., a Show Cause Notice dated 24.06.2003 was issued by the Commissioner of Central Excise & Customs, Vadodara, requiring the appellants to make an amount of Rs. 10,34,27,684/- as excise duty in respect of the clearance effected. The Commissioner, vide the order impugned, ordered the appropriation of the amount of Rs. 3,17,75,620/- paid by Power Grid Corporation of India Ltd. on account of the appellants and confirmed the demand and imposed a penalty of equivalent amount on the assessee and on General Manager (Commercial), a penalty of Rs. 10,00,000/- was imposed, along with penalties of Power Grid Corporation of India Ltd. Hence these appeals.

2. The appellants were heard and on considering that in any event the entirety of the demand has been discharged as would be evident by the certificates carefully annexed and, therefore, the matter is to be remanded back to the Commissioner to verify and confirm that each of the payment was made by Power Grid Corporation of India Ltd. and that no amount, therefore, is due from any person. The demand, in this case, will have to be reworked out.

3. In view of the above, if the amount of duty as soon as been discharged, the question of penalty will have to be reconsidered in the light of the facts of this case. For this purpose, the appeals are to be allowed as remand to the original authority to re-determine the issue of duty demands, if any, required to be determined in view of the certificates as also the question of penalties as arrived at in view of the facts of this case and the submission which the appellants may opt to make before the Id. Commissioner.