EXCISE Appeal No. 10732 of 2020-SM
[Arising out of Order-in-Original/Appeal No RAJ-EXCUS-000-APP-076-079-2020 dated
29.07.2020 passed by Commissioner (Appeals) Commissioner of Central Excise, Customs and
Service Tax-RAJKOT]
DHARMENDRA K KANABAR
VERSUS
C.C.E. & S.T.-RAJKOT
WITH
Excise Appeal No. 10733 of 2020 (Dharmit C Patel)
Excise Appeal No. 10734 of 2020(Nitin R Dalsaniya)
Excise Appeal No. 10735 of 2020 (Max Ceramics Pvt Ltd)
APPEARANCE:
Shri P D Rachchh, Advocate for the Appellant
Shri Rajesh K Agarwal, Superintendent (Authorized representative) for the
Respondent
CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR
Final Order No. A/ 10017-10020 /2023
DATE OF HEARING: 23.12.2022
DATE OF DECISION:05.01.2023
RAMESH NAIR
The appeal is directed against order in appeal dated 28.07.2020,
whereby, Learned Commissioner (Appeals) has dismissed the appeals of the
appellant. The case of the department is that, the appellant M/s. Max
Ceramics Pvt Ltd have cleared the Ceramic Glazed, Digital Wall Tiles, and Floor
tiles illicitly without payment of Central Excise Duty. As per the investigation
carried out by Directorate General of Central Excise Intelligence (DGCEI)and
an adjudication, the demand of duty on the alleged clandestine removal made
by the M/s. Max Ceramics Pvt Ltd was confirmed and penalties under Rule 26
was imposed on other appellants, therefore, the present appeals are filed.
Shri P.D Rachchh, Learned Counsel appearing on behalf of the appellant
submits that the goods which were alleged to have been cleared clandestinely
by M/s. Max Ceramics Pvt Ltd are not manufactured by them whereas the
same varieties are manufactured by Oasis Vitrified Pvt Ltd. In this regard he
invite my attention to SCN issued to Oasis Vitrified Pvt Ltd statements of Shri
Dharmendra K. kanabar marketing in charge M/s. Max Ceramics Pvt Ltd. He
also referred to the annexures of show cause of Oasis Vitrified Pvt Ltd.,
wherein, he has pointed out that the variety and size of tiles which were being
manufactured by Oasis Vitrified Pvt Ltd and cleared clandestinely. The demand
was raised from the appellant, therefore, the demand is not sustainable. He
further submits that the appellant have already paid an amount of Rs. 5 Lacs
against the corrected duty demand interest and penalties, therefore, the case
can be concluded on that basis.
Shri Rajesh K Agarwal, Learned Superintendent (Authorized
Representative) appearing on behalf of the revenue reiterates the finding of
the impugned order.
I have carefully considered the submissions made by both the sides and
perused the records. I find that from the record shown by the learned counsel
and comparison of the product manufactured by Oasis Vitrified Pvt Ltd and
the appellant it is prima facie appeared that the demand was raised in respect
of the alleged clandestine removal of those goods which are not manufactured
by the appellant whereas, the same is manufactured by Oasis Vitrified Pvt Ltd.
If this is found to be corrected then the demand against the appellant will not
sustain. However, the adjudicating authority has not considered this vital
aspects in proper manner. As regard the submission of the Learned Counsel
that since they have paid Rs. 5 Lakhs against the probable duty, interest and
penalty. The matter can be concluded on that basis, and remaining amount
shall be refundable in accordance with law. I am therefore of the view that the
Adjudicating Authority needs to reconsider the case and pass an order a fresh.
Accordingly, the impugned order is set aside, Appeals are allowed by way of
remand to the Adjudicating Authority.
(Dictated & Pronounced in open Court on 05.01.2023)
(RAMESH NAIR)
MEMBER (JUDICIAL)
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