2010 (12) TMI 199 - AT - Central Excise

Penalty - shortage of the finished goods - director of the respondent firm admitted that the goods have been cleared clandestinely without payment of duty - order setting aside the penalty on the respondent company as well as on the director of the company is incorrect and set aside - Revenues appeals allowed

Summary

Issues: Central Excise duty evasion through clandestine removal, confirmation of duty demand, imposition of penalty under Section 11AC and Rule 26, setting aside of penalty by Commissioner (Appeals), justification of penalty on the director, evidence of clandestine removal, payment of duty prior to show cause notices.

Analysis:
The case involved a respondent, a manufacturer of HDPE laminated fabric, accused of evading Central Excise duty by clandestinely removing finished goods without payment. Central excise officers discovered substantial shortages of finished products on two separate visits to the respondent's factory. The respondent admitted to the shortages and acknowledged that the goods were removed without payment of duty. Consequently, show cause notices were issued, duty demands were confirmed, and penalties were imposed on both the company and the director under Section 11AC and Rule 26. The Commissioner (Appeals) upheld the duty demand but set aside the penalties, citing that the duty was paid before the notices and the shortage alone did not prove clandestine removal. The department appealed this decision.

During the appeal, the respondent did not appear, and the department argued that the substantial unexplained shortages, admissions by the director, and lack of evidence of legitimate removal justified the penalties. The tribunal noted the significant shortages on both occasions, the director's admission of clandestine removal, and the legal precedent that payment of duty before notices does not absolve penalty imposition. Citing relevant case law, the tribunal emphasized that when elements for penalty imposition exist, the penalty equal to the confirmed duty demand must be imposed. Therefore, the tribunal overturned the Commissioner's decision, reinstated the penalties on both the company and the director, and allowed the Revenue's appeals.

In conclusion, the tribunal found the penalties justified based on the substantial shortages, admissions of clandestine removal, and legal precedents regarding penalty imposition under Section 11AC. The decision highlighted the importance of evidence, legal principles, and the lack of discretion in imposing penalties when duty evasion is established, even if duty payment precedes show cause notices.