M/S Deeveearreprographics Pltd v. The Customs Excise And Service
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.07.2017
CORAM:
THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.11717 of 2004 and W.P.M.P.No.13773 of 2004 M/s.Deeveear Reprographics P. Ltd., Rep. by its Director V.Duraisamy, 185-A, Jayapralash Nagar, Sanganoor Road, Coimbatore-641 006.
.. Petitioner Vs.
1. The Customes Excise and Service Tax Appellate Tribunal South Zonal Bench, Shastri Bhavan Annexe, Chennai-600 006.
2. The Commissioner of Central Excise (Appeals) Trichy.
3. The Joint Commissioner of Central Excise, 6/7. ATD Street, Race Course, Coimbatore.
.. Respondents Prayer : Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, calling for the records relating to the order passed by the 1st respondent in Final Order No.312/2004 dated 12.03.2004 in Appeal No.E/256/2002 of the petitioner and quash the same as illegal and unsustainable.
For Petitioner : Mr.M.A.Mudimannan for Mr.K.Jayachandran For Respondents : Mr.A.P.Srinivas, Senior Panal counsel for R2 and R3
ORDER
Heard Mr.M.A.Mudimannan, learned counsel for Mr.K.Jayachandran, learned counsel for the petitioner and Mr.A.P.Srinivas, learned Senior Panal Counsel appearing for respondents 2 and 3.
2. The petitioner has filed this writ petition challenging the order passed by the first respondent/Tribunal dated 12.03.2004. This order was passed in an appeal filed by the petitioner against the Order-in-Original dated 14.02.2002 passed by the second respondent confirming the demand of duty of Rs.2,74,292/- and reduced penalty amount of Rs.2,00,000/-.
3. The tribunal has allowed the petitioner's appeal so far as the denial of Modvat Credit is concerned and it held that such denial was not tenable and set aside such findings. If the Tribunal had come to such conclusion, then obviously, the Tribunal ought to have given relief to the petitioner from penalty of equivalent amount namely Rs.76,540/-. However chose to given partial relief of Rs.35,000/-. When the main issue relating to denial of Modvat credit itself was set-aside, the penalty ought to have been set aside in its entirety and not to a partial extend. To that extent, the impugned order calls for interference.
4. The learned counsel for the petitioner submitted that in terms of the decisions of the Hon'ble Supreme Court of India, the value ought to have been take as cum-duty price and accordingly, the duty have to be reworked. Such a ground has been raised in the memorandum of grounds of appeal filed before the first respondent. But no finding has been rendered by the Tribunal on the said issue. In fact such a contention has been raised in paragraph 7(g) of the affidavit filed in support of the writ petition and there is no specific denial in the counter affidavit filed by the Deputy Commissioner of Central Excise. Since this being a settled legal issue, based on the decisions of the Hon'ble Supreme Court, the value ought to be redetermined, accordingly, by the third respondent.
5. In the light of the above, the writ petition is allowed and the order directing levy of penalty of Rs.35,000/- under Rule 571(4) of the Central Excise Rules, is set aside and the matter is remanded to the third respondent for arriving at a correct value, as it is contended that cum-duty price ought to have been taken into consideration.
6. With the above observations and directions, the writ petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
Sd/- Asst.Registrar (CS VIII) /true copy/ Sub Asst. Registrar rli/vsm
To
1. The Customes Excise and Service Tax, Appellate Tribunal South Zonal Bench, Shastri Bhavan Annexe, Chennai-600 006.
2. The Commissioner of Central Excise (Appeals) Trichy.
3. The Joint Commissioner of Central Excise, 6/7. ATD Street, Race Course, Coimbatore.
+1cc to M/s.K.Jayachandran,Advocate sr.48365 +1cc to M/s.A.P.Srinivas,Advocate sr.48386 WP.No.11717 of 2004 sai(co) ss(3/8/2017)