2011 (4) TMI 853 - AT - Central Excise

Penalty u/s 11AC - Clandestine clearance - Assessees undertook bleaching/dyeing on terry toweling fabrics on job work basis with the aid of power using winch machines and also without the aid of power - Held that - The fact of manufacture was not disclosed to the department and the plea of bonafide belief also is not available to the assessees, as they had not obtained any clarification from the department nor filed any declaration - Therefore, uphold the impugned order and reject the appeal of the assessees - The appeal of the Revenue is allowed as the charge of clandestine clearance stands established, in which case, there is no room in law for reduction of penalty amount under the provisions of Section 11AC - Appeal of the Revenue is allowed.

Summary

Issues:
Confirmation of demand on processed terry toweling fabrics, imposition of penalty under Section 11AC, reduction of penalty by Commissioner (Appeals).

Confirmation of Demand:
The case involved the confirmation of a demand of Rs.75,259 on processed terry toweling fabrics, where bleaching/dyeing processes were carried out on a job work basis by the assessees. The Joint Commissioner of Central Excise confirmed the demand along with interest under Section 11AB and imposed a penalty under Section 11AC, applying the proviso to Section 11A of the Act. The contention that the assessees did not undertake the bleaching/dyeing processes on a job work basis was rejected. The Tribunal found that the assessees did undertake the processes using winch machines with and without the aid of power. The Tribunal held that the fact of manufacture was not disclosed to the department, and the plea of bonafide belief was not available to the assessees as they did not seek clarification from the department or file any declaration. Consequently, the Tribunal upheld the impugned order and rejected the appeal of the assessees.

Imposition of Penalty under Section 11AC:
Regarding the imposition of penalty under Section 11AC, the Tribunal allowed the appeal of the Revenue. The Tribunal found that the charge of clandestine clearance was established, leaving no room in law for the reduction of the penalty amount under the provisions of Section 11AC. The Tribunal emphasized that reduction of penalty was not warranted in cases where clandestine clearance was proven. Therefore, the Tribunal upheld the penalty imposed by the Joint Commissioner of Central Excise.

Reduction of Penalty by Commissioner (Appeals):
The Revenue appealed against the reduction of penalty to Rs.7,500 by the Commissioner (Appeals). The Tribunal allowed the Revenue's appeal, stating that in cases where clandestine clearance is established, there is no legal basis for reducing the penalty amount. As a result, the Tribunal dismissed the appeal of the assessees and allowed the appeal of the Revenue, upholding the penalty imposed by the Joint Commissioner of Central Excise.

This judgment by the Appellate Tribunal CESTAT, CHENNAI, highlighted the importance of disclosing manufacturing processes to the department, seeking clarification when needed, and the consequences of clandestine clearances in excise matters.