2011 (4) TMI 1056 - HC - Central Excise

Penalty and Demand of duty - separation of the industry between husband and wife is only to get separate SSI exemption - finding of the Tribunal is that, in effect the industry though with two names is run as a single unit with common funds and management no substantial question of law arising from the orders of the Tribunal wherein the findings are only on facts - Tribunal under the impugned orders though not discussed levy of penalty challenged by them has virtually upheld it in principle - appellants counsel pointed out that the provisions were introduced or recast only on 28/09/1996 and the offence if any relates prior to the said amendment, and therefore, according to him, Section 11AC has no application Held that - CE Appeals are therefore disposed of confirming the orders of the Tribunal to the extent indicated above and by remanding the penalty matter to the adjudicating authority

Summary

Issues:
1. Confirmation of demand of duty on appellants by Customs, Excise & Service Tax Appellate Tribunal.
2. Challenge to the levy of penalty under Section 11AC of the Central Excise Act.
3. Reconsideration of penalty by the adjudicating authority based on rectification application.

Confirmation of Duty Demand:
The judgment concerns an order issued by the Customs, Excise & Service Tax Appellate Tribunal confirming the demand of duty on the appellants. The Tribunal found that the industry, despite being separated between a husband and wife for the purpose of obtaining separate SSI exemption, was effectively run as a single unit with common funds and management. The High Court acknowledged that it cannot interfere with the Tribunal's findings of fact based on the evidence and record presented. The Court clarified that appeals against Tribunal orders can only be entertained on substantial questions of law, and in this case, no substantial question of law arose as the Tribunal's findings were factual.

Challenge to Penalty Levy:
The appellants challenged the levy of penalty under Section 11AC of the Central Excise Act. The respondent produced a revised adjudication order showing the penalty imposed under Section 11AC. Citing a Supreme Court decision, it was argued that the penalty under Section 11AC is mandatory, and the adjudicating authority has no discretion above it. The appellants contended that since the provisions were introduced or recast after the relevant offense period, Section 11AC should not apply. The Court noted the need for the matter to be reconsidered by the adjudicating authority. A direction was given for the authority to review the case based on a rectification application from the appellants along with a copy of the judgment to reassess the penalty, considering the applicability and discretion regarding the penalty provisions for the relevant period.

Reconsideration of Penalty:
The judgment disposed of the Customs, Excise Appeals by confirming the Tribunal's orders regarding duty demand and remanding the penalty matter to the adjudicating authority for further consideration. The authority was instructed to reassess the propriety and extent of the penalty levied, taking into account the applicability of penalty provisions for the relevant period and any discretion available at that time.

This detailed analysis covers the confirmation of duty demand, the challenge to the penalty levy under Section 11AC, and the reconsideration of the penalty by the adjudicating authority as addressed in the judgment delivered by the High Court.