2017 (11) TMI 1623 - AT - Customs

Clandestine removal - shortage of finished goods - Held that - when the shortages of finished goods were detected, the appellant paid the duty. Revenue has failed to prove that the short found goods have been cleared, therefore, the date of shortages detected is the date of clearance and on the same date, the appellants have paid duty - demand of interest set aside. No option has been given to the appellant to pay 25% duty as penalty as per the provisions of Section 11 AC of the Act - option given to the appellant to pay 25% duty as penalty with in 30 days of the receipt of the date of communication of this order and failing this opportunity to the appellant to pay 100% duty as penalty. Penalty u/r 26 of CER, 2004 - Held that - as the main firm has been penalized - penalty on the partner under Rule 26 of CER, 2004 is not sustainable. Appeal allowed in part.

Summary

Issues:
Appeal against waiver of demand of interest and penalties imposed.

Analysis:
The appellants filed appeals against the impugned order seeking waiver of demand of interest and challenging the penalties imposed on them. The case involved shortages of finished goods and raw materials found during a search conducted at the factory premises of the main appellant. The duty attributable to these shortages was paid by the appellant on the same date as the detection. Subsequently, show cause notices were issued demanding duty on the shortages, interest, and penalties. The matter was adjudicated, and the demand of duty already paid was appropriated, interest was demanded, and a penalty was imposed on the co-appellant under Rule 26 (1) of CER, 2002.

The appellant's counsel argued that since duty was paid on the shortages on the same date they were detected, interest should not be payable. The counsel relied on a previous decision of the Tribunal to support this contention. Additionally, it was contended that the adjudicating authority did not provide the option to pay 25% duty as a penalty, as required by Section 11 AC of the Act. The counsel requested that the impugned order be modified accordingly, especially regarding the penalty imposed on the co-appellant of the partnership firm.

On the other hand, the Revenue's counsel reiterated the findings of the impugned order, emphasizing that the appellant was obligated to pay interest for the intervening period. After hearing both parties and considering their submissions, the judge found that the appellant had paid duty on the shortages on the same date they were detected, and there was no evidence that the short found goods had been cleared. Therefore, the demand for interest was deemed unsustainable based on a previous Tribunal decision. Consequently, the demand for interest was set aside.

Furthermore, the judge noted that the adjudication order did not provide the appellant with the option to pay 25% duty as a penalty as mandated by law. Therefore, the judge exercised the power to grant the appellant the option to pay 25% duty as a penalty within 30 days of receiving the order. Failure to do so would result in the appellant being required to pay 100% duty as a penalty. Additionally, it was observed that since the main firm had already been penalized, the penalty on the co-appellant was deemed unsustainable under Rule 26 of CER, 2004. Consequently, the penalty imposed on the co-appellant was set aside.

In conclusion, based on the above observations and analysis, the appeals were disposed of as discussed in the judgment.