2009 (10) TMI 737 - AT - Central Excise

Summary

Issues:
Reduction of penalty under Section 11AC of the Central Excise Act, 1944 by the ld. Commissioner (Appeals) and the prescription of equal penalty under the law.

Analysis:
The Appellate Tribunal CESTAT NEW DELHI addressed the grievance raised by the Revenue regarding the reduction of penalty under Section 11AC of the Central Excise Act, 1944 by the ld. Commissioner (Appeals). The Revenue contended that the penalty should not have been reduced as the levy of equal penalty is mandated by law. Learned Joint CDR argued that the decision of the First Appellate Authority was not in line with the law, emphasizing that the show cause notice clearly indicated clandestine removal of goods.

On the other hand, Shri Bipin Garg, Advocate for the Respondent, referred to a specific page in the appeal folder outlining the proposed consequences of penalty under Section 11AC. He highlighted that since the show cause notice proposed a penalty of 25% of the duty amount, a higher penalty could not be imposed as per the law. Garg relied on a decision by the Hon'ble Delhi High Court in the case of K.P. Pouches (P) Ltd. v. Union of India to support this argument.

The Tribunal considered both arguments and reviewed the record. It reiterated the principle that no individual should face adverse consequences without being given an opportunity to defend against the proposed penalty in the show cause notice. Referring to the decision in the case of K.P. Pouches (P) Ltd., the Tribunal emphasized that when the law prescribes a penalty of 25% of the duty amount, this requirement must be adhered to unless circumstances warrant otherwise. The Tribunal found that the First Appellate Authority had not followed this legal principle.

To resolve the dispute, the Tribunal decided to remand the matter back to the Adjudicating Authority for further examination. The Adjudicating Authority was instructed to determine whether the entire duty amount was paid and whether the option for a penalty of 25% of the duty amount was permissible, following the precedent set by the Hon'ble High Court of Delhi. The Tribunal emphasized that penalties should not be levied arbitrarily and that any excess amount paid as penalty should be refunded.

Regarding the penalty imposed on Shri Manoj Chand, Partner, the Tribunal found that his guilt intention was not evident from the show cause notice, and he was not implicated in defrauding revenue. Consequently, the Tribunal ruled in favor of the assessee, leading to the failure of the Revenue's appeal.

In conclusion, the Revenue's appeals were allowed to a limited extent, with modifications to the first appellate order and a remand of the matter to the Adjudicating Authority for the re-determination of the penalty for M/s. R. Narayan Steel Industries. The cross objection filed by the assessee was also disposed of accordingly.

(Dictated and Pronounced in the open Court)