2007 (2) TMI 449 - AT - Central Excise

Summary

Issues:
1. Imposition of penalty under Section 11AC of Central Excise Act, 1944.
2. Clandestine removal of goods and duty payment.

Analysis:
1. Imposition of Penalty under Section 11AC:
The Tribunal initially set aside the penalty imposed under Section 11AC of the Central Excise Act, 1944, through Final Order No. A/328-329/05-NB(S) and Misc. Order No. 34/06-SM (BR). However, the Revenue appealed to the Hon'ble High Court of Punjab & Haryana, which, in its Judgment and Order, dated 25-9-2006, set aside the Tribunal's decision and remanded the matter for a fresh decision. The High Court emphasized that the mere deposit before the issuance of a show cause notice was not conclusive for avoiding penalty imposition, and the matter needed to be examined on its merits. Ultimately, after a thorough review, the Tribunal concluded that the penalty under Section 11AC could not be invoked in this case, as there was no evidence of fraud, collusion, willful misstatement, suppression of facts, or contravention of any provision of the Act to evade duty payment. Consequently, the imposition of penalty under Section 11AC was set aside, and the appeals were allowed.

2. Clandestine Removal of Goods and Duty Payment:
The case involved the detection of shortage of raw material and finished goods during a stock verification at the appellants' factory. The Director of the appellant company attributed the irregularity to the actions of employees due to his absence because of illness. The department quantified the duty demand based on the shortage detected and issued a show cause notice proposing duty demand and penalty under Section 11AC. The appellants deposited the entire duty amount before the notice to avoid further litigation, indicating their good faith. The department alleged clandestine removal of goods without duty payment, justifying the penalty under Section 11AC. However, upon examination, it was found that the duty payment was made promptly upon the ascertainment of the shortage, without evidence of fraudulent intent or evasion. The absence of proof of clandestine removal or willful violation led to the conclusion that Section 11AC could not be invoked. Therefore, the duty demand was upheld, but the penalty under Section 11AC was set aside, and the appeals were allowed with any consequential relief.

In conclusion, the judgment provided a detailed analysis of the issues surrounding the imposition of penalty under Section 11AC and the allegations of clandestine removal of goods. The decision highlighted the importance of examining each case on its merits and the necessity of evidence to support penalty imposition under the Central Excise Act, 1944.