2009 (1) TMI 716 - AT - Central Excise

Summary

Issues:
Imposition of equivalent penalty on the respondent-assessee for clearance of physician's samples free by paying duty based on different valuation rules.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Mumbai involved the imposition of an equivalent penalty of Rs. 89,942 on the respondent-assessee for clearing physician's samples free by paying duty based on the assessable value determined under Rule 8 of Valuation Rules, 2000. The assessee had followed this valuation method in compliance with CBEC instructions until a change in valuation pattern was introduced through a circular in 2005. Despite the change, the assessee continued with the old method until it was brought to light by Departmental Officers during a visit in 2006.

The Tribunal noted that the method of valuation adopted by the assessee, although based on an earlier circular, was not disputed by the Department until the issue was raised post the Bombay High Court's decision in 2006. The Tribunal found that there was no evidence of mala fide intent or deliberate misdeclaration by the assessee to evade duty payment. It was observed that the absence of mens rea or fraudulent intention, as well as the lack of elements under Section 11AC, indicated that the penalty was not warranted in this case.

Consequently, the Tribunal upheld the Order of the Commissioner (Appeals) and rejected the appeal filed by the Revenue, concluding that the equivalent penalty of Rs. 89,942 was not imposable on the respondent-assessee. The judgment emphasized the absence of deliberate wrongdoing or fraudulent behavior on the part of the assessee, leading to the decision in favor of the respondent.