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2010 (11) TMI 301 - AT - Central ExcisePenalty - Not filing ER 1 return - Compounded levy scheme - Notification No. 34/01-C.E., dated 28-6-01 - The Commissioner (Appeals) has relied on the decision of Larger Bench of this Tribunal in the case of Mohinder Steel Ltd. v. CCE 2002 -TMI - 48923 - CEGAT, NORTHERN BENCH, NEW DELHI wherein it was held that applicability of general provisions in Central Excise Act and Rules 12 are excluded in case of compounded levy of duty - As per the applicability of Central Excise manual Chapter XII Part I para 1.1, it has been mentioned that these provisions deal with all aspects of Central Excise such as payment of duty, maintenance of records, filing of return etc - Held that is only a procedural lapse which was committed by the respondents under bona fide belief and for such technical lapse - Thus, reduced the penalty to Rs. 2,000/- The appeal filed by the Revenue is rejected.
Issues:
- Appeal for enhancement of penalty under Rule 27 of Central Excise Rules, 2002. - Applicability of Rule 12 of the Central Excise Rules, 2002. - Reduction of penalty by the Commissioner (Appeals). - Interpretation of the compounded levy scheme for payment of Excise duty. - Bona fide belief in compliance with notification requirements. - Procedural lapse in filing ER 1 returns. Analysis: The case involves an appeal regarding the enhancement of penalty under Rule 27 of the Central Excise Rules, 2002. The respondents, engaged in manufacturing Aluminium circles, availed a compounded levy scheme for excise duty payment based on the number of cold rolling machines installed. The issue arose when the respondents failed to file ER 1 returns as required by Rule 12 of the Central Excise Rules, 2002. A show cause notice was issued, resulting in a penalty of Rs. 5,000/- for each default over 75 months. The penalty was later reduced by the Commissioner (Appeals) to Rs. 2,000/-, leading to the Revenue's appeal for further enhancement. The Revenue argued that the respondents were liable for penalty as they failed to comply with Rule 12 by not filing ER 1 returns in time. Given the maximum penalty of Rs. 5,000/- under Rule 27, the Revenue contended that the initial penalty of Rs. 3,75,000/- was justified. On the other hand, the respondent's advocate asserted that while the procedural lapse of not filing ER 1 returns occurred, the duty was paid on time, and other necessary procedures were followed under the compounded levy scheme. The advocate highlighted that the penalty reduction by the Commissioner (Appeals) to Rs. 2,000/- was appropriate due to the bona fide belief in compliance and the technical nature of the lapse. In the judgment, the Tribunal referred to a previous decision by a Larger Bench regarding the exclusion of general provisions in the Central Excise Act and Rules in cases of compounded levy schemes. The Tribunal emphasized that the compounded levy scheme serves as an alternative for excise duty payment, with specific provisions governing aspects like duty payment, record maintenance, and return filing. The Commissioner (Appeals) reasoned that the non-filing of monthly returns was a procedural lapse resulting from a bona fide belief on the part of the respondents. This belief was supported by the regular filing of Appendix II forms and the absence of revenue implications. Consequently, the Tribunal affirmed the Commissioner's decision to reduce the penalty to Rs. 2,000/-, concluding that the penalty reduction was justified in light of the circumstances and the technical nature of the lapse. The appeal by the Revenue was consequently rejected, upholding the Commissioner's decision.
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