M/S Perfect Caps and Others Vs. Commissioner of Central Excise, Mumbai-ii - Court Judgment

SooperKanoon Citationsooperkanoon.com/942758
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnJan-19-2010
Case NumberAppeal No. E/2999 to 3001 of 2004
Judge THE HONOURABLE MR. ASHOK JINDAL, MEMBER (JUDICIAL)
AppellantM/S Perfect Caps and Others
RespondentCommissioner of Central Excise, Mumbai-ii
Advocates:Shri Bharat Raichandani Advocate for Appellant. Shri S.S. Katiyar SDR for Respondent.
Excerpt:
per: shri ashok jindal, member (judicial) in the earlier round of litigation, this tribunal after setting aside the impugned order, remanded the matter back to the commissioner to pass a fresh order on the following grounds, which are reproduced herein under: - (i) there is a self-contradiction in the order-in-original. on one hand, it has been held that shri r. laxman, manager of m/s perfect caps and m/s perfect closures have actively connived in various contraventions of law by units, whereas on the other hand she has held that in the case of m/s perfect caps suppression cannot be said to have been made with intention to evade payment of duty. (ii) the demands for recovery of modvat credit was issued under rule 571 read with section 11a, under which extended period of 5 years was invokable in case of willful misstatement, collusion or suppression of facts on the part of the assessee. intention to evade payment of duty is not a requirement as is the case with section 11a. therefore, the demand for recovery of irregular credit totaling to rs.4,51,505/- ought to have been confirmed. 2. in the remand proceedings, it is found that the commissioner has not given her concrete findings after hearing the parties and she endorsed the earlier order dated 31.3.1997 as far as penalties are concerned, which shows that the commissioner in the remand proceedings had relied on the earlier order and not examined the matter afresh. 3. with these observations, i do not find any merit in the impugned order. accordingly, the same is set aside and the matter is remanded back to the commissioner to consider the issue with regard to penalties on the appellants and give an opportunity of being heard to the appellants before arriving at any decision. considering the fact that it is an old case, it would be appropriate to decide the matter within 3 months from the date of communication of this order.
Judgment:

Per: Shri Ashok Jindal, Member (Judicial)

In the earlier round of litigation, this Tribunal after setting aside the impugned order, remanded the matter back to the Commissioner to pass a fresh order on the following grounds, which are reproduced herein under: -

(i) There is a self-contradiction in the Order-in-Original. On one hand, it has been held that Shri R. Laxman, Manager of M/s Perfect Caps and M/s Perfect Closures have actively connived in various contraventions of law by units, whereas on the other hand she has held that in the case of M/s Perfect Caps suppression cannot be said to have been made with intention to evade payment of duty.

(ii) The demands for recovery of Modvat credit was issued under Rule 571 read with Section 11A, under which extended period of 5 years was invokable in case of willful misstatement, collusion or suppression of facts on the part of the assessee. Intention to evade payment of duty is not a requirement as is the case with Section 11A. Therefore, the demand for recovery of irregular credit totaling to Rs.4,51,505/- ought to have been confirmed.

2. In the remand proceedings, it is found that the Commissioner has not given her concrete findings after hearing the parties and she endorsed the earlier order dated 31.3.1997 as far as penalties are concerned, which shows that the Commissioner in the remand proceedings had relied on the earlier order and not examined the matter afresh.

3. With these observations, I do not find any merit in the impugned order. Accordingly, the same is set aside and the matter is remanded back to the Commissioner to consider the issue with regard to penalties on the appellants and give an opportunity of being heard to the appellants before arriving at any decision. Considering the fact that it is an old case, it would be appropriate to decide the matter within 3 months from the date of communication of this order.