2016 (5) TMI 1331 - AT - Central Excise

Penalty u/r 25 of the CER, 2002 - benefit of N/N. 56/2002-CE dated 14.11.2002 - the refund claims were pending for adjudication. Therefore the appellant could not pay duty through PLA during the period July 2010 to December 2010 - Held that - penalty u/r 25 of the CER, 2002 can be imposed only when it qualifies provision of Section 11AC of the CEA, 1944. Section 11AC of the Act states that penalty can only be imposed, if duty has not been levied, not paid, or short levied, or short paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of the Rule/Act to evade the payment of duty. Therefore, the mensreea for imposing penalty is required - There is no such allegation against the appellant that they have not paid duty in time by way of fraud, collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of the Rule/Act with intend to evade payment of duty - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Imposition of penalty under Rule 25 of the Central Excise Rules, 2002.

Analysis:
The appellant appealed against the penalty imposed under Rule 25 of the Central Excise Rules, 2002. The appellant, located in Jammu & Kashmir, availed exemption under Notification No. 56/2002-CE, which required duty payment on additions made, utilizing Cenvat Credit on inputs and paying the remaining duty through PLA. Due to pending refund claims, duty through PLA was not paid for a period, leading to a show cause notice for denying Cenvat credit and demanding duty payment through PLA for that period, along with interest and imposing penalty. The adjudicating authority observed that if the refund claim amount had been adjusted, no further payment was required, dropping proceedings. However, the Revenue appealed for imposing penalty under Rule 25, relying on a previous case. The appellant contended the absence of mens rea in the notice, citing a High Court decision. The AR argued that the earlier case's decision was upheld by the High Court, justifying the penalty.

Upon examination, it was found that the previous case's decision was not final but stayed, contrary to the AR's argument. The key issue was whether the penalty was applicable under Rule 25, which necessitates meeting the provisions of Section 11AC of the Central Excise Act, 1944, requiring mens rea for penalty imposition. The show cause notice lacked allegations of fraudulent intent, collusion, wilful misstatement, or contravention to evade duty payment, essential for imposing the penalty. This interpretation aligned with a High Court ruling, indicating that in such circumstances, the penalty under Rule 25 was not applicable, as per Section 11AC's requirements.

Consequently, the Tribunal held that in the absence of mens rea and the necessary elements for penalty imposition, the impugned order lacked merit. Therefore, the appeal was allowed, setting aside the order, with any consequential relief granted.