2011 (9) TMI 505 - HC - Central Excise

Penalty under 11AC - Credit was not reversed voluntary - Held That - In view of Dharamendra Textile Processors, (2008 (9) TMI 52 - SUPREME COURT), payment of the differential duty, whether before or after the show cause notice cannot alter the duty liability. Decided against assessee.

Summary

Issues:
1. Interpretation of penalty under Section 11 AC of the Central Excise Act, 1944.
2. Consideration of Cenvat credit reversal and its impact on penalty imposition.

Issue 1: Interpretation of penalty under Section 11 AC:
The case involved a Central Excise Appeal questioning whether the penalty under Section 11 AC of the Central Excise Act could be exempted in cases of suppression of fact and confirmed recovery under the proviso to Section 11 (A) (1) of the Act. The appellant contended that the Customs Excise and Service Tax Appellate Tribunal erred in holding that the imposition of penalty was not sustainable due to the debiting of Cenvat Credit before the notice issuance. The Tribunal reduced the penalty to 50% of the duty amount due to conflicting views. However, the Adjudicating Authority imposed the penalty under Section 11 AC, finding contravention of rules established, but the Commissioner (Appeals) disagreed, stating that no intent to evade payment was proven. The appellant argued that the Cenvat credit reversal was not voluntary but done after departmental intervention.

Issue 2: Consideration of Cenvat credit reversal:
The Deputy Commissioner's order detailed instances where Cenvat credit was availed incorrectly, leading to the obligation to reverse it. The party in question promised to reverse the credit but failed to do so, violating rules and suppressing facts to evade duty. The Tribunal's error lay in misinterpreting the voluntary nature of the credit reversal, as it was done upon departmental pointing out and assurance by the assessee. The Supreme Court precedent highlighted that the timing of duty payment, whether before or after the notice issuance, should not affect penalty imposition under Section 11AC, emphasizing the conditions outlined in the Act.

In conclusion, the High Court ruled in favor of the revenue, emphasizing that the Tribunal's misinterpretation of the Cenvat credit reversal and failure to consider the department's role led to an erroneous decision. The judgment clarified the conditions for penalty imposition under Section 11AC and directed the department to proceed accordingly based on the findings of the Adjudication Officer and the Appellate Authority.