2011 (8) TMI 1261 - HC - Customs

Penalty - duty has been paid before SCN was issued - Held that - The issue is no more res integra as it has been clearly held in Union of India v. Rajasthan Spinning and Weaving Mills 2009 (5) TMI 15 - SUPREME COURT OF INDIA , that payment of differential duty made by the assessee before or after issuance of SCN does not alter liability for penalty and the imposition of penalty is mandatory if the conditions are satisfied. The Tribunal having confirmed the order of confiscation setting aside the order of penalty on the ground that duty has been paid before issuance of notice, cannot be sustained and the same is contrary to the decision of the Supreme Court - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Appeal against order of Customs, Excise and Service Tax Appellate Tribunal.
2. Questions of law regarding setting aside penalty and interest.
3. Imposition of penalty before issuance of show cause notice.
4. Competency of Tribunal to waive penalty and interest.
5. Voluntary payment of amount by respondent-company.
6. Dispute over liability for payment of duty on goods.
7. Consideration of penalty levy principles by Tribunal.

Analysis:
1. The appeal was filed by the Revenue against the Customs, Excise and Service Tax Appellate Tribunal's order confirming confiscation but setting aside penalty imposed on the respondent due to duty payment before show cause notice. The questions of law included errors in setting aside penalty, contrary to Customs Act provisions, and the Tribunal's competency to waive penalty and interest under Section 111 of the Customs Act.

2. The case involved a public bonded warehouse where irregularities were found, leading to confiscation of goods, demand of duty, interest, and penalty by the Adjudicating Authority. Subsequent appeals and orders challenged the penalties imposed, with the Tribunal ultimately setting aside the penalty due to duty payment before the show cause notice issuance.

3. The appellant argued citing Supreme Court judgments that duty payment before notice does not absolve liability for penalty. The High Court analyzed the substantial questions of law, emphasizing that penalty imposition is mandatory if conditions are met, as established in previous Supreme Court decisions.

4. The High Court concluded that the Tribunal's decision to set aside the penalty based on duty payment before notice issuance was contrary to Supreme Court rulings. The order of the Tribunal confirming confiscation but waiving penalty was deemed unsustainable, leading to the appeal being allowed and the penalty reinstated.

5. In summary, the High Court's judgment favored the Revenue, overturning the Tribunal's decision to set aside the penalty imposed on the respondent due to duty payment before the issuance of the show cause notice, aligning with the mandatory penalty imposition principles outlined in Supreme Court precedents.