2011 (8) TMI 184 - AT - Central Excise

Penalty under Section 11AC - Clandestine removal - Held that apex Court has held that provisions of Section 11AC would automatically get attracted when there is clandestine removal.Upholding the penalty imposable on the assessee under Section 11AC of Central Excise Act, 1944, we give option to the assessee to pay the penalty equivalent to 25% of the amount of duty confirmed personal penalties - find that the individuals are either partners or directors of the assessees - It is on record that all these partners and directors have categorically stated in their statement recorded under Section 14 of Central Excise Act, that they were having the knowledge of clandestine removal of the goods, without being reflected in the books of accounts - If that be so, we cannot sustain the impugned order setting aside the imposing of penalties on the individuals - On a specific query from the Bench, it has been informed that the statements recorded were not retracted - . The impugned orders to the extent of setting aside the personal penalties on the Director and Partners under Rule 26 is not sustainable,

Summary

Issues:
Appeal against order in appeal regarding non-imposition of penalty under Section 11AC on companies and firms, setting aside penalties on individuals for duty liability discharged before show cause notice issuance.

Analysis:
The appeals were consolidated due to identical issues, focusing on penalties under Section 11AC for duty liability discharge before show cause notice issuance. The Revenue contested the Commissioner (Appeals) decision to set aside penalties based on the assessees' duty discharge before notice issuance, citing the Tribunal's decision in Machino Montell case, supported by the High Court of Punjab & Haryana. The Revenue argued that post the Rajasthan Spinning Mills case, penalties under Section 11AC apply to admitted clandestine removals.

The Counsel referenced the Gujarat High Court's M/s. Akash Fashion Prints Pvt. Limited case, advocating for a 25% reduced penalty, which both lower authorities upheld. They criticized the lack of penalty imposition options and absence of findings for individual penalties. The Tribunal reviewed both sides' arguments and the records extensively.

The Tribunal upheld lower authorities' decisions confirming demands and interest liabilities due to admitted clandestine clearance. Regarding penalties under Section 11AC, the Tribunal concurred with the Revenue, emphasizing that such penalties apply to clandestine removals. The Tribunal offered the assessees the choice to pay a penalty equal to 25% of the confirmed duty within 30 days, warning of full penalty liability if not paid promptly.

Regarding personal penalties on individuals who were partners or directors of the assessees, the Tribunal noted their knowledge of clandestine removals, as per their statements under Section 14 of the Central Excise Act. The Tribunal found the lower authorities' decision to set aside personal penalties unjustifiable, reducing such penalties by 50% due to specific case circumstances. The Tribunal modified the impugned orders accordingly, except for the indicated modifications.

The Tribunal disposed of all appeals and cross-objections supporting the impugned orders, concluding the judgment.