2011 (2) TMI 761 - AT - Central Excise

Penalty under section 11AC - There is no dispute that 12,000 kgs. of polyester and viscose staple fibre, in respect of which cenvated had been taken, was removed from the appellant s factory to M/s Modern Polyester Yarn, a 100% EOU belonging to the same group of companies without payment of duty or reversal of Cenvat credit and without issue of the invoice and this removal amounts to clandestine removal without of duty in contravention of the provisions of the Cenvat Credit Rules and hence the conditions for imposition of penalty under Section 11AC are satisfied and accordingly the penalty equal to the duty demanded would be attracted - Do not find any infirmity in the order passed by the Commissioner (Appeals) by which the penalty equal to the duty demanded had been upheld - The appeal is, therefore, dismissed.

Summary

Issues:
- Duty demand on polyester and viscose staple fibre cleared without payment of duty
- Imposition of penalty under Section 11AC of the Central Excise Act

Analysis:
- Duty Demand Issue: The appellant, a manufacturer of manmade spun yarn, availed Cenvat credit of duty paid on inputs. A shortage of polyester and viscose staple fibre was detected during a stock taking, with the material found in the premises of their 100% EOU. The show cause notice confirmed a duty demand of Rs. 1,23,331 on the removed fibre. The Additional Commissioner upheld the duty demand, along with interest and penalties on the company and its executives. The Commissioner (Appeals) dismissed the appeals, leading to the Tribunal reducing the penalty but upholding the duty demand. The matter reached the Supreme Court, which remanded it back to the Tribunal for fresh consideration based on legal precedents.

- Penalty Imposition Issue: The appellant argued that there was no intention to evade duty, citing the absence of evidence of willful misstatement or fraud. The Department contended that the removal of the fibre without reversing the credit and issuing invoices amounted to clandestine removal, satisfying the conditions for penalty under Section 11AC. The Tribunal, following the Supreme Court's guidance, concluded that the removal of fibre without payment of duty or reversal of credit constituted clandestine removal, meeting the criteria for penalty imposition. The Tribunal upheld the penalty equal to the duty demand, as per the legal requirements.

In conclusion, the Tribunal dismissed the appeal, affirming the duty demand and penalty imposition based on the findings of clandestine removal without payment of duty or reversal of credit. The judgment aligned with legal precedents and the provisions of Section 11AC of the Central Excise Act, emphasizing the consequences of willful misstatement or suppression of facts in duty-related matters.