Poduval Industries vs The Commissioner Of Central Tax ...
2022 Latest Caselaw 7777 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                  &
             THE HONOURABLE MR.JUSTICE BASANT BALAJI
   TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
                     C.E.APPEAL NO. 45 OF 2018
      (Against Final Order No.20161/2018 of the OTHERS 185/2008 OF
CUSTOMS,EXCISE & SERVICE TAX APP.TRIBUNAL,BANGALORE, in appeal
                            No.E/185/2008-DD)
APPELLANT/S:

            PODUVAL INDUSTRIES
            INDUSTRIAL DEVELOPMENT AREA, EDAYAR, CALICUT -673
            032.
            BY ADVS.
            SRI.M.GOPIKRISHNAN NAMBIAR
            SRI.P.GOPINATH
            SRI.K.JOHN MATHAI
            SRI.JOSON MANAVALAN
            SRI.KURYAN THOMAS
            SRI.PAULOSE C. ABRAHAM


RESPONDENT/S:

            THE COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE
            C R BUILDING, I S PRESS ROAD, KOCHI -682 018.
            BY ADV SMT.PREETHA S. NAIR, SC, CENTRAL BOARD OF
            EXCISE AND CUSTOMS


     THIS     CENTRAL   EXICISE   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 C.E.APPEAL NO. 45 OF 2018




                                    -2-


                              S.V.BHATTI
                     & BASANT BALAJI, JJ.
 - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - -
              C.E.APPEAL NO. 45 OF 2018
 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - -
                              JUDGMENT

(Dated this the 28th day of June 2022) Basant Balaji J.,

The appellant challenges the final order in appeal No. E/185/2008-DD of Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore wherein the challenge against the order of the commissioner appeal was repelled.

2. The brief facts of the case are as follows: The appellant is a proprietary concern engaged in the manufacture of diesel generator sets. The acoustic enclosures to reduce the noise and heat that is generated due to the operation of the diesel generator sets was outsourced to a job worker and the said acoustic enclosures were transported to the customers premises where it was C.E.APPEAL NO. 45 OF 2018

assembled on the generator sets. The department issued a show-cause notice dated 29.1.2004 that directed the appellant to show cause as to why Rs.10,52,892/- should not be demanded from it, towards differential duty on alleged clearance of acoustic enclosures from their factory during the period from 1.4.2000 to 24.6.2002. Though a reply was filed by the appellant, after hearing, the Joint Commissioner of Central Excise passed Annex-D order dropping all proceedings initiated against the assessee. Annex-D order was a subject matter of review by the Commissioner of Central Excise and the Joint Commissioner of Central Excise also filed an appeal before the Commissioner of Central Excise (Appeals). The Commissioner (Appeals) by order dated 29.11.2007, set aside Annex-D order of the Joint Commissioner of Central Excise, and the demand of Rs.10,52,892/- together with an equal amount of penalty was confirmed. Aggrieved by the order Annex-E Order of Commissioner (Appeals), the appellant filed an appeal before the Tribunal. The C.E.APPEAL NO. 45 OF 2018

Tribunal, by Annex-G Final order dated 6.2.2018, dismissed the appeal. Against the said order of the Tribunal, this appeal is filed.

3. A perusal of the Final Order of the Tribunal reveals that the Tribunal has not gone into the grounds raised by the appellant in Annex-F Appeal Memorandum but dismissed the appeal as follows:

"To protect the interest of the Revenue, the duty will have to be paid by someone. In the instant case, the appellant is the principal and by not giving the undertaking, the appellant has developed a system to evade payment of Central Excise duty. By connivance of two parties, sovereign function of payment of duty cannot be avoided. In the instance case, the principal and the job worker with a conspiracy as stated above have made an attempt to evade the payment of duty. They tried to take advantage of the technicality of the law."

C.E.APPEAL NO. 45 OF 2018

Hence, the order passed by the Commissioner

(Appeals) demanding Rs.10,52,892/- was confirmed.

4. Adv. Preetha S Nair, the learned Standing Counsel, vehemently opposed the submissions made across the Bar by the counsel for the appellant and submitted that Annex- A show-cause notice clearly proves the connivance of two parties to avoid the duty which the appellant is liable to pay. She even opposed the remand on the ground that the movement of goods by the appellant is so evident from the show cause notice and the explanation of the same need by the appellant. We have seriously taken note of the above submission, but since the order passed by the Tribunal is a cryptic one, we have no option but to set aside the same.

5. The Tribunal has not gone into the merits of the case, nor the grounds raised in the Appeal Memorandum of the appellant. The finding entered by the Tribunal cannot be sustainable in law. No reasoning is stated for dismissing C.E.APPEAL NO. 45 OF 2018

the appeal. In view of the matter, we are of the considered opinion that the final order of the Tribunal has to be interfered with and we do so.

In the result, the Appeal is allowed, and order of the Tribunal is set aside and the matter is remitted to the Tribunal, for reconsideration afresh, in accordance with law.

sd S.V.BHATTI, JUDGE

sd

BASANT BALAJI, JUDGE dl/ C.E.APPEAL NO. 45 OF 2018

APPENDIX OF C.E.APPEAL 45/2018

PETITIONER ANNEXURES ANNEXURE A TRUE COPY OF THE SHOW CAUSE NOTICE NO.43/2003-04 DATED 29.01.2004(WITHOUT ANNEXURES) ISSUED TO THE APPELLANT BY THE COMMISSIONER OF CENTRAL EXCISE, COCHIN ANNEXURE B TRUE COPY OF THE REPLY DATED 08.07.2004 TO ANNEXURE A SHOW CAUSE NOTICE FILED BY THE APPELLANT BEFORE THE COMMISSIONER OF CENTRAL EXCISE, COCHIN.

ANNEXURE C TRUE COPY OF THE ADDITIONAL REPLY DATED 28.03.2005 BEFORE THE JOINT COMMISSIONER OF CENTRAL EXCISE, COCHIN.

ANNEXURE D TRUE COPY OF ORDER IN-ORIGINAL NO.159/2005 CE DATED 16.08.2005 ISSUED BY THE JOINT COMMISSIONER OF CENTRAL EXCISE.