2003 (5) TMI 444 - AT - Central Excise

Summary

Issues:
Imposition of penalty under Rule 173Q of the Central Excise Rules based on contravention of Rule 52A.

Analysis:
The appeal before the Appellate Tribunal arose from the Order-in-Original passed by the Commissioner of Customs & Central Excise, Hyderabad, imposing a penalty of Rs. 10 lakhs under Rule 173Q of the Central Excise Rules for contravention of provisions. The appellant's counsel argued that penalty under Rule 173Q requires clandestine removal of goods or intent to evade duty, emphasizing that the penalty was imposed based on a contravention of Rule 52A. The Commissioner, while dropping the penalty under Rule 52A, invoked Rule 173Q for contravention of Rule 52A, citing the omission of Rule 52A(8) by a specific notification. On the other hand, the respondent contended that penalty could be attracted under Rule 173Q(1)(bbb) for entering incorrect particulars in invoices to facilitate unauthorized duty credit. The Commissioner found the appellant's actions to be more than a technical mistake, involving tampering with invoices to divert consignments to depots holding Central Excise Dealer registrations, passing on duty credit to customers.

The Tribunal carefully considered both parties' submissions and the Commissioner's findings. It noted that the penalty under Rule 173Q was imposed solely for contravention of Rule 52A, without any evasion of duty or demand. The Tribunal agreed with the appellant's counsel that penalty under Rule 173Q requires intent to evade duty, which was not present in this case. The Tribunal observed that the Commissioner had not justified the penalty under Rule 173Q in the absence of duty evasion or demand. Therefore, the Tribunal found no valid reason to impose the penalty under Rule 173Q and allowed the appeal, stating that the penalty was imposed solely for contravention of Rule 52A. The Tribunal emphasized that to attract penalty under Rule 173Q, there must be clandestine removal of goods or contravention with intent to evade duty, which was not established in this case. Consequently, the appeal was allowed, and the penalty under Rule 173Q was set aside.