TaxTMI 
TaxTMI 
2009 (12) TMI 489
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....Chapter Heading Nos. 72.11 & 73.06 of the Schedule to the Central Excise Tariff Act, 1985. The respondent-assessee was also availing the Cenvat credit facility of duty paid on raw material/puts and capital goods On 23/24-11-2000, the Officers of Central Excise Rohtak Division intercepted a tempo on Delhi-Rohtak Highway, bearing Registration No. HR-46-A-3040, be longing to the respondent-assessee, which was loaded with steel tubes and pipes. On demand the driver produced original copy of invoice bearing Sr. No. 1714, dated 23-11-2000, valued at Rs. 1,02,765/- involving Central Excise duty of Rs.16,442/-, issued by the respondent-assessee. However, the transporter's copy of the invoice was not available. 3. The officers brought back the tempo to the factory premises, where Shri A.N. Singh, authorised signatory of the respondent-assessee was present. Thereafter, in the presence of two independent witnesses the records pertaining to central excise were scrutinised which revealed that the respondent-assessee has not debited the duty liability of the goods in question in the PLA despite the tact that the same were debited in the invoice. It was also noticed that the facility of fortni....
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....Q of the Central Excise Rules, 1944. (c) Tempo No. HR-46A-403t) valued at Rs. 20,0,000/- should not be confiscated under Section 115 of Customs Act, 1962 made applicable to central excise matters. (d) Mandatory penalty should not be imposed and interest on delayed payment of Central Excise Duty should not be recovered from them under Sections l & 11AC of the Central Excise Ad, 1944." 5. The case was adjudicated by the Joint Commissioner who vide order dated 26-2-2003 confirmed the demand of duty of Es. 40,218/- covered by three invoices dated 23-11-2000. The seized goods i.e. 6.045 MT steel tubes/pipes valued at Rs. 1,02,765/- & 5.210 MT C.R. Strips valued at Rs. 1,02,403/- were confiscated with an option of redemption fine of Rs. 10,000/- for each of them. Penalty of Rs. 40,218/- under Section 1 and recovery of interest under Section 11AC of the Act has also been imposed upon the respondent-assessee. Other than this, the tempo valued at Rs. 2,00,000/- was also confiscated with an option of redemption fine of Rs. 20,000/-. Penalty of Rs. 25,000/- each has also been imposed on M/s. Om Steel Industries and M/s. Bhogal Sales Corporation under Rule 173Q of the Central Excise R....
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....alty to Rs. 2,000/-. 8. Having heard learned counsel for the parties and perusing the re cord with their able assistance we find that the matter is no longer res integra. In the present case it would be necessary to read Rule 13 of the Central Excise Rules, 1944 (sic) (for brevity, "the Rules'), which reads thus: "13. Confiscation and penalty.- (1) If any person, takes CENVAT credit in respect of inputs or capital goods, wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the document accompanying the inputs or capital goods specified in rule 7, or contravenes any of the provisions of these rules in respect of any inputs or capital goods, then, all such goods shall be liable to confiscation and such person, shall be liable to a penalty not exceeding the duty on the excigable goods in respect of which any contravention has been committed or ten thousand rupees, whichever is greater. (2) In a case, where the CENVAT credit has been taken or utilized wrongly on account of fraud, willful mis-statement, collusion or suppression of fads, or contravention of any of the provisions of the Act or....
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....on by the assessee with the intent to evade duty by adopting any of the means mentioned in the section'. Accordingly, the judgment of Hon'b the Supreme Court in -Dharaniendra Textile Processor's case (supra) is not an authority for the proposition that Section 11AC of the Act would apply to every case of non payment or short payment of duty regardless of fulfilment of the conditions expressly mentioned in the section for its application. However, once it was found to be applicable then the concerned authorities would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under Section 11(2) of the Act. 11. In the present case, learned counsel for the appellant has not been able to show any fraud, wilful misstatement, collusion or suppression of facts on the part of the respondent-assessee with the intention to evade payment of duty. We confronted learned counsel for the revenue to point out any finding of availing Cenvat credit by playing fraud, wilful misstatement, collusion etc. with the intention to evade payment of duty but he remained unable to show any such finding. It is pertinent to notice that Rule 13(2) of the Rules uses s....