2004 (97) ECC 445 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(B)

Shri V.K. Agrawal, Member (T) and Shri P.S. Bajaj, Member (J)

Dhillon Kool Drinks and Beverages Ltd.

Versus

Commissioner of Central Excise, Jalandhar

E/Stay/1365/2004-NB(B) in Appeal No. E/2023/2004-NB(B)

[Arising out of Order-in-Appeal No. 69/CE/Jal/2004 dated 30.1.2004 passed by the Commissioner of Central Excise, Jalandhar]

Stay Order No. 356/2004-B
Final Order No. 614/2004-B, dt. 29.7.2004, Certified on 13.8.2004

Payment of Duty by Cheques

Penalty -- Recovery of entire amount stayed -- Penalty imposed under Order-in-Original confirmed by the Commr. (A) has been set aside by the Tribunal vide F.O. dated 2.7.2004. Once the order confirming the penalty imposed on the appellants has been set aside by the Tribunal, the question of enhancing the said penalty by the impugned order does not survive. At no stage the Department or Chief Accounts Officer, whom the cheques were sent to, objected to the payment of duty by cheques or refused to accept the cheques and required the Appellants to pay the duty only from PLA.

Appeal is allowed

PRESENT :

Shri K.K. Anand, Adv. for the appellants.

Shri Virag Gupta, JDR for the respondent.

Case Cited :

CCE Jaipur v. Genus Overseas Electronics Ltd., 2003 (155) ELT 541 (T)............... [Para 3]

Per : V.K. Agrawal

As the issue involved in the present Appeal filed by M/s. Dhillon Kool Drinks and Beverages Ltd. stands decided by the Tribunal in their own case vide Final Order No. A/1047-1050/04-NB(C) dated 2.7.04, we stay the recovery of entire amount of penalty confirmed against them under the impugned order and take up the Appeal itself for disposal.

2. Shri K.K. Anand, learned Advocate, submitted that the Appellants who manufacture aerated water and Beverage syrup, submitted 52 cheques during the period April 1998 to March 1999 to the Chief Accounts Officer, Central Excise for depositing Central Excise duty and took the credit in their PLA on the date of submissions of the cheques; that the Deputy Commissioner under Order-in-Original No. 20/01 dated 29.1.01 imposed a penalty of Rupees Nine lakhs on them on the ground that the payment of excise duty has to be made in the branches nominated bank and the credit has to be taken on the basis of receipted TR 6 challan which has not been done by them; that on Appeal filed by the Revenue, the Commissioner (Appeals) has enhanced the penalty to Rs. 95 lakhs holding that the Appellants had made a routine in sending the cheques to the Chief Accounts Officer instead of following the correct procedure of depositing the same in the Banks which is a deliberate/intentional violation in utter disregard of Rules and regulations. The learned Advocate submitted that the Appellants had also filed an Appeal against the Order-in-Original imposing penalty of Rs. 9 lakhs before the Commissioner (Appeals) who under Order-in-Appeal No. 558-61/2003 dated 16.9.2003 had upheld the Order-in-Original; that the appellants thereafter filed appeals against the Order-in-Appeal dated 16.9.03 before the Tribunal and the Tribunal vide Final Order No. A/1047-50/2004 dated 2.7.04 has allowed the appeals filed by the appellants with consequential relief; that once the appeals filed by the Appellants against imposition of penalty of Rs. 9 lakhs itself has been allowed by the Appellate Tribunal, the question of enhancing the said penalty to Rs. 95 lakhs does not arise and accordingly, the impugned order has to be set aside. We also heard Shri Virag Gupta, learned Departmental Representative who reiterated the finding as contained in the impugned order.

3. We have considered the submissions of both the sides. It has not been disputed by the Revenue that the Order-in-Original No. 20/2001 dated 29.1.01 under which the Deputy Commissioner had imposed a penalty of Rs. 9 lakhs on the appellants was confirmed by the Commissioner (Appeals) alongwith other orders in Appeal No. 558-61/CE/Jal/2003 dated 16.9.03 and the said Order-in-Appeal has been set aside by the Tribunal vide Final order dated 2.7.04. The Tribunal, while setting aside the said order, had observed that at no stage the Department or Chief Accounts Officer, whom the cheques were sent to, objected to the payment of duty by cheques or refused to accept the cheques and required the Appellants to pay the duty only from PLA. The Tribunal has further observed that all the cheques were retained by the Chief Accounts Officers and when submitted to the Bank, the cheques were honored and credited to the Government account. "The delay in encashment of the cheques also cannot be attributed to the Appellants as it is not a case of the Department that the cheques could not be submitted earlier or encashed due to lack of funds in the account of on the appellants." The Tribunal had also relied upon the decision of the Larger Bench of the Tribunal in the case of CCE Jaipur v. Genus Overseas Electronics Ltd., 2003 (155) ELT 541 wherein it has been held that the deposit of duty by cheques which are not dishonoured later on, satisfies the requirement of law in respect of payment of duty. Once the order confirming the penalty imposed on the appellants has been set aside by the Tribunal, the question of enhancing the said penalty by the impugned order does not survive. We, therefore, set aside the impugned order and allow the Appeal.

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