2004 (97) ECC 583 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(B)

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

VA-Tech Escher Wyss Flovel Limited

Versus

CCE, Faridabad, Delhi-IV

Appeal No. E/3018/03-B of 2003

[Arising out of Order-in-Original/Appeal No. 217/CE/APPL/DLH-IV/2003, 31.7.2003, passed by CCE(A), Delhi-IV Faridabad]

Final Order No. 196/2004-B, dt. 13.2.2004, Certified on 22.3.2004

Penalty (C. Excise)

Goods (Hydro-electric equipments and parts thereof) cleared without complying with the condition of Notification No. 108/95-CE without payment of duty -- The appellants therefore are liable for penal action -- However penalty is reduced to half.

Appeal disposed of

PRESENT :

Shri S.C. Kamra, Adv. for the appellant.

Shri Vikas Kumar, SDR for the respondent.

Per : S.S. Kang

Heard both the sides.

2. The appellants filed this appeal against the Order-in-Appeal passed by the Commissioner (Appeals) whereby the penalty of Rs. 1 lakh was imposed on the appellants under Rule 173Q of CE Rules.

3. The brief facts of the case are that the appellants are engaged in the manufacture of turbine for hydro electric equipments and parts thereof. The appellants cleared the goods by availing the benefit of Notification No. 108/95-CE without payment of duty. As per the condition of the notification a manufacturer has to produce the certificate issued by the Principal Secretary or the Secretary (Finance) of the State Government or Union Territory that the goods in question are required for execution of Project approved by the Government of India and is financed by the World Bank, Asian Development Bank or any other International Organisation.

4. Admitted facts are that the appellants at the time of clearance of the goods had not produced any such certificate. The goods were cleared in the year, 1999 and the certificates required under the notification were produced by the appellants at the time of hearing of the appeal by the Commissioner (Appeals) in the year 2002 and the Commissioner (Appeals) accepted the certificate and allowed the benefits of notification. However, he imposed a penalty of Rs. 1 lakh.

5. The appellants are only challenging imposition of penalty on the ground that when there is no demand, therefore, imposition of penalty is not sustainable.

6. We find that when the goods were cleared by the appellants, they had not complied with the condition of the notification, under which the goods were cleared, therefore, the goods were deemed to be cleared without payment of duty. In the circumstances, we agree with the lower authorities that the appellants are liable for penal action. However, the penalty is reduced to Rs. 50,000. The appeal is disposed of as indicated above.

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