2011 (3) TMI 945 - AT - Central Excise

Defaulted in monthly payment of duty - The duty of goods in question was paid from the cenvat account. Therefore a show cause notice was issued and the same was adjudicated vide the impugned order wherein the adjudicating authority confirmed the demand of duty of Rs.1,67,879/- to be paid from current account in cash alongwith interest and equivalent penalty - the Tribunal in the case of Saurashtra Cement 2008 -TMI - 90327 - CESTAT, AHMEDABAD and it was observed that where the goods are cleared under the cover of invoices and the only default is delay in payment of duty, the Provisions of Rule 27 would get attracted which provide for a maximum penalty of Rs. 5,000/-Accordingly, penalty is reduced to Rs. 5,000/-, but for the above modification in the quantum of penalty appeal is otherwise rejected.

Summary

Issues:
Default in monthly payment of duty, clearance of goods without payment, imposition of penalty, interpretation of Central Excise Rules, challenge before Commissioner (Appeals), quantum of penalty, application of Rule 27, precedent decisions of the Tribunal.

Analysis:

The case involved a default in the monthly payment of duty by the appellants for specific months, leading to the clearance of goods without payment of duty from the current account beyond the allowed period. This action was deemed impermissible under Rule 8(3A) of the Central Excise Rules, 2002. Consequently, a show cause notice was issued, resulting in the demand of duty to be paid from the current account in cash, along with interest and equivalent penalty. Additionally, a redemption fine was imposed for the duty paid from the cenvat account, which was considered as non-payment of duty.

The appeal against the original adjudicating authority's order was made before the Commissioner (Appeals), who restored the credit of duty paid from the cenvat account and set aside the confiscation of goods. However, the penalty of Rs.1 lakh imposed on the appellant was upheld, leading to the current appeal primarily contesting the quantum of penalty.

During the proceedings, the learned advocate for the appellant argued that the imposition of a penalty of Rs.1 lakh under Rule 25 was not justified, citing precedent decisions of the Tribunal that indicated the applicability of Rule 27 for default in payment of duty on a fortnightly basis. The advocate requested a reduction of the penalty to Rs.5,000, as provided under Rule 27.

The Tribunal referred to previous decisions, particularly the case of Shaligram Laminates Pvt. Ltd. Vs. CCE Ahmedabad, which highlighted that penalties under Rule 27 should apply in cases where goods are cleared with delayed duty payment but without fraudulent intent to evade payment. Consequently, the penalty was reduced to Rs.5,000 in line with Rule 27, considering the appellant's payment of duties without any mala fide intention to evade duty payment.

Ultimately, the Tribunal disposed of the stay petition and appeal by reducing the penalty to Rs.5,000, in accordance with the settled interpretation of the law under Rule 27.