2011 (2) TMI 132 - HC - Central Excise

Demand - Penalty - Rule 25 of the Central Excise Rules, 2002 - Clandestine removal - demand was on the basis of shortage of inputs - demand was paid on detection of the department - Held that - there is no evidence of clandestine removal - tribunal order for deleting penalty sustained.

Summary

Issues:
- Interpretation of Section 11A(2B) of the Central Excise Act, 1944
- Applicability of penalty under rule 25 of the Central Excise Rules, 2002

Analysis:
1. The judgment addressed two appeals, CEA Nos. 218 and 219 of 2010, involving common questions related to the interpretation of the Central Excise Act, 1944. ITA No. 218 of 2010 was filed by the revenue against an order of the Customs, Excise & Service Tax Appellate Tribunal. The substantial questions of law raised in the appeal included whether Section 11A(2B) of the Act applies when duty is debited by the assessee on detection by the department, and whether penalty is applicable under rule 25 of the Central Excise Rules, 2002 in cases of shortage of raw material and finished goods detected by the department.

2. The assessee, a manufacturer of iron and steel products, received a Show Cause Notice in 2004 for alleged short payment of duty. The subsequent Order-in-Original imposed duty payment and a penalty, which was set aside by the Commissioner (Appeals) but upheld on duty payment. Upon further appeal by the department, it was determined that no evidence of clandestine removal existed, and the duty had been paid before the Show Cause Notice, leading to the conclusion that no penalty was warranted under Section 11A(2B) of the Act.

3. The Tribunal upheld this decision, emphasizing that the duty was paid upon detection of shortages by the department, without evidence supporting clandestine removal. The Commissioner's finding that no penalty was justified in such circumstances was deemed valid. The High Court concurred with these findings, stating that in the absence of evidence of clandestine removal, there was no basis for imposing a penalty. Consequently, the questions raised did not qualify as substantial questions of law, leading to the dismissal of the appeals.

4. The judgment concluded by dismissing the appeals and ordering a photocopy of the order to be placed in the file of any connected cases. The decision reaffirmed the importance of evidence in determining the applicability of penalties under the Central Excise Act and Rules.