2008 (7) TMI 699 - AT - Central Excise

Summary

Issues involved: Appeal against setting aside of penalty under Section 11AC for short levy of duty on machines cleared for captive consumption.

Analysis:
The appeal was filed by the Revenue against the setting aside of a penalty imposed on the respondent under Section 11AC for short levy of duty on machines cleared for captive consumption. The Revenue argued that the penalty should be imposed as the duty liability under the proviso to Section 11A(1) was upheld by the Commissioner (Appeals). However, the respondent contended that the question of penalty imposition does not arise as the valuation aspect is disputed, and the machines were cleared for captive consumption. The Tribunal considered the submissions and records presented by both sides.

The main issue in this case was the short levy of duty on machines cleared for captive consumption. The respondent discharged the duty liability based on their valuation. Subsequently, the Revenue's audit party informed the respondents to value the machines in a specific way, which they complied with and discharged the duty liability. The penalty under Section 11AC of the Central Excise Act, 1944, was imposed on the respondent. The Commissioner (Appeals) set aside the penalty, noting that there was no motive to evade duty as the machines were cleared for captive consumption, the final product was dutiable, and Modvat credit was legally available to the respondent. The Commissioner found that under such circumstances, there was no benefit to the respondent and zero revenue implication.

The Tribunal agreed with the Commissioner (Appeals) and held that the findings were correct. It was observed that in cases of captive consumption, there are notifications available for non-payment of duty. Therefore, the Tribunal found no merit in the Revenue's appeal and rejected it. The judgment was dictated in court by the Members of the Tribunal.