DHARMENDRA K KANABAR VERSUS C.C.E. & S.T.-RAJKOT

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)