2011 (4) TMI 53 - HC - Central Excise

Penalty under Section 11AC - Discretionary or mandatory in nature - The learned counsel however states that the question to be framed in this case would be whether on the facts and circumstances the appellate authority was right in confirming the penalty imposed on the respondent herein - The Tribunal has clearly recorded a finding of fact that from the record it is clear that there was no suppression of facts or misstatement etc. with intention to evade payment of duty on the part of the appellants It will be a clear finding of fact and no perversity is shown in the finding - Hence the appeal stands dismissed.

Summary

Issues:
1. Whether the quantum of penalty under Section 11AC is discretionary or mandatory in nature.
2. Whether the appellate authority was right in confirming the penalty imposed on the respondent.

Analysis:
1. The primary issue before the court was whether the quantum of penalty under Section 11AC is discretionary or mandatory. The Supreme Court in Union of India vs. Dharamendra Textile Processors clarified that the provision is mandatory. The court referred to Union of India vs. Rajasthan Spinning and Weaving Mills, where it was explained that once Section 11AC is applicable in a case, the concerned authority has no discretion in qualifying the amount, and the penalty must be imposed equal to the duty determined under Section 11A(2). The court emphasized that this interpretation is specific to Section 11AC only.

2. The second issue involved whether the appellate authority was correct in confirming the penalty imposed on the respondent. The Tribunal had found no suppression of facts or misstatement with the intention to evade duty on the part of the appellants. The court considered this as a clear finding of fact with no perversity shown. Therefore, the court concluded that the question framed did not arise, leading to the dismissal of the appeal.

In conclusion, the court upheld the mandatory nature of the penalty under Section 11AC and found no grounds to overturn the decision of the appellate authority regarding the penalty imposed on the respondent.