Per: Mr. M. Veeraiyan, Member (Technical) These appeals are against the order of the Commissioner (Appeals) No.4-5/2006(Ahd-I)CE/AV/Commr(A-IV) dt.15/6/2006.
2. Heard both sides.
3. The relevant facts, in brief, are as follows:- a. When the officers visited the factory on 3/1/1998, they found shortage of 31,239 L. Mtrs. of processed fabrics valued at Rs.5,10,288/- involving duty of Rs.1,02,058/-. b. Shri Gautambhai C.Shah, Director of the appellant company admitted that the fabrics found short were cleared without bringing into account and without payment of duty and voluntarily paid the duty involved on 3/1/1998 . c. Show cause notice dt.22/6/1998 was issued and the Original Authority by his order dt.8/2/1999 confirmed the duty, which stood paid already; imposed equal penalty on the appellant company and also imposed penalty of Rs.10,000/- on the Director of the company. d. Commissioner (Appeals) reduced the penalty from Rs.1,02,058/- to Rs.75,000/- and upheld the penalty imposed on the Director.
4. Ld. Advocate appearing for the appellant submits that it was a case made out on the basis of shortage and the admission statements; no actual measurement of the fabrics lying in the appellants factory was undertaken on the date of visit by the officers; the duty involved was paid. She is not disputing the demand of duty. She seeks the benefit of the judgement of the Honble High Court of Delhi in the case of CCE Vs. Malbro Appliances P Ltd.[2007(79)RLT109(Del.)], wherein the penalty was reduced to 25% of the duty determined in cases where the duty involved have been paid prior to issue of show cause notice.
5. Ld. SDR relies on the judgment of the LB of the Tribunal in the case of CCE, Delhi-IV Vs.Ilpea Paramount Pvt. Ltd.[2007(213)ELT500(Tri. LB) and submits that in this case the reduced penalty of 25% will not be available as the same has been paid within one month from the date of issue of the order.
6. I have carefully considered the submissions from both sides. The duty demand is not in dispute. The Commissioner (Appeals) has reduced the penalty from Rs.1,02,058/- to Rs.75,000/. The penalty sustained by the commissioner is not equal to the duty confirmed from the appellant. I find from the facts dealt with in the decision of M/s.Ilpea Paramount Pvt. Ltd. ,it was not a case where the duty involved was paid before issue of show cause notice. In the present case, the duty evaded has been paid on 3/1/1998 while the show cause notice was issued on 22/6/1998 and order-in-original was issued on 8/2/1999. The facts of the present case are akin to the case of M/s.Malbro Applicances P Ltd. cited supra. 7.1. Following the ratio of the judgment of the Honble Delhi High Court, I reduce the penalty imposed on the appellant company to Rs.25,515/-. 7.2. The Director of the company who was looking after the entire activities of the company admitted his knowledge about the clandestine removal and intention in a clandestine removal of this nature is evident. Therefore penalty on him is warranted. However, taking the entire facts and circumstances into consideration, I reduce the penalty to Rs.5,000/- from Rs.10,000/-.
8. Appeals are partly allowed on the above terms. (Dictated & Pronounced in Court) (M. Veeraiyan) Member (Technical) Nr