2011 (8) TMI 73 - AT - Central Excise

Penalty - Rule 25 of Central Excise Rules 2002 - Appellant contested show cause notice only on the ground that in the month of May their plant was shut down and they were facing serious financial hardship - there is no dispute as regards discharge of duty liability along with interest for the clearances made by the appellant during the month of March and April 2002 - held that there is no suppression of the clearances with an intention to evade payment of duty - It is only because of stringent financial condition that the duty could not be paid in time and as soon as liquidity was available duty was paid along with interest - there seems to be contravention of provisions of the law by the appellants and hence penalty under Rule 27 of the Central Excise Rules may be attracted - though the show cause notice does not indicate imposition of penalty under Rule 27 to meet the interest of justice we hold that appellant is to be penalised under Rule 27 - Appeal is disposed of

Issues:
1. Duty liability on excisable goods cleared by the appellant.
2. Imposition of penalty under Rule 25 of Central Excise Rules.
3. Appeal against penalty imposition.
4. Applicability of judgments from High Courts in similar cases.
5. Discharge of duty liability by the appellant.
6. Question of penalizing the appellant under Rule 25 of Central Excise Rules.
7. Suppression of clearances with an intention to evade duty payment.
8. Confirmation of duty payment along with interest.
9. Setting aside the penalty imposed by lower authorities.
10. Contravention of provisions of the law by the appellant.
11. Imposition of penalty under Rule 27 of Central Excise Rules.

Analysis:

1. The appellant cleared excisable goods in March and April 2002 but failed to discharge the duty liability as required by Rule 8 of Central Excise Rules, 2002. The Revenue authorities issued a show cause notice for non-payment of duty, leading to the imposition of an equivalent penalty under Rule 25 of Central Excise Rules, read with Section 11AC of Central Excise Act, 1944.

2. The appeal against the penalty imposed under Rule 25 was filed before the Commissioner (Appeal), who upheld the penalty. The appellant contended that they faced financial hardship, their factory was closed in May, and they had paid the duty and interest subsequently. They cited judgments from High Courts to support their case for leniency in penalty imposition.

3. The Tribunal considered the submissions and found that the duty liability and interest for the clearances in question were paid by the appellant on a later date. It was noted that there was no intention to evade payment of duty, as the appellant had properly accounted for the clearances in their records and returns.

4. Referring to the judgments from High Courts, the Tribunal concluded that in the absence of any intention to evade duty payment and considering the financial constraints faced by the appellant, the penalty imposed under Rule 25 was not justified. The Tribunal upheld the duty payment along with interest but set aside the penalty imposed by the lower authorities.

5. However, the Tribunal observed a contravention of the law by the appellant for not paying the duty amounts as stipulated in Rule 8. Despite the absence of a mention of penalty under Rule 27 in the show cause notice, the Tribunal decided to penalize the appellant under Rule 27 and imposed a penalty of Rs. 5,000 for the contravention.

6. In conclusion, the Tribunal confirmed the duty payment along with interest, set aside the penalty imposed under Rule 25, and imposed a penalty under Rule 27 for the contravention of provisions of Rule 8 of Central Excise Rules, 2002.

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