2010 (6) TMI 413 - AT - Central Excise

Penalty clandestine removal shortage of final product - quantum of shortage was 7271.30 kg. due to mistake in recording the weight - burden of proving that the shortage is not due clandestine removal would be on the assessee - goods clandestinely removed by the appellants - penal provisions of Section 11AC would be attracted irrespective of the fact that the duty had been paid by the appellants prior to the issuance of SCN

Summary

Issues:
- Duty demand confirmation and penalty imposition under Section 11AC based on shortage of finished goods found during central excise officers' visit.
- Applicability of the first proviso to Section 11AC in reducing penalty amount.
- Interpretation of judgments by Hon'ble Delhi High Court and Hon'ble Supreme Court regarding penalty imposition under Section 11AC.

Analysis:

Issue 1: Duty Demand and Penalty Imposition
The case involved the confirmation of duty demand amounting to Rs. 2,07,666/- against the appellants due to a shortage of 7271.30 kg of finished goods, stamping lamination, found during a visit by central excise officers. The Assistant Commissioner confirmed the duty demand and imposed a penalty under Rule 25 of the Rules read with Section 11AC. The Commissioner (Appeals) upheld this order, leading to the appellant's appeal to the Tribunal.

Issue 2: First Proviso to Section 11AC
The appellant contended that the shortage was not due to clandestine removal and argued for a reduced penalty based on the first proviso to Section 11AC. This proviso allows for a penalty of 25% of the duty amount if the duty, interest, and the reduced penalty are paid within thirty days of the order communication. The appellant cited judgments by the Hon'ble Delhi High Court to support their argument for a reduced penalty amount.

Issue 3: Interpretation of Court Judgments
The Tribunal considered the submissions from both sides and acknowledged the quantum of shortage and the burden of proof on the appellants to show that the shortage was not due to clandestine removal. The Tribunal referred to judgments by the Hon'ble Supreme Court and the Hon'ble Delhi High Court regarding the imposition of penalties under Section 11AC. The Tribunal noted that the first proviso to Section 11AC provides for a reduced penalty if the duty, interest, and a penalty of 25% of the duty amount are paid within thirty days.

In conclusion, while upholding the duty demand and penalty under Section 11AC, the Tribunal recognized the applicability of the first proviso to Section 11AC in reducing the penalty amount to 25% of the duty. The Tribunal modified the impugned order in line with the judgments by the Hon'ble Delhi High Court, thereby reducing the penalty imposed on the appellant.