2010 (11) TMI 831 - AT - Central Excise

Shortage of finished goods - clandestine removal of the goods penalty - Director of the company Shri Virendra Jakhodia admitted shortage in his statement given under Section 14 of the Central Excise Act and explained that the same would have happened due to the workers clearing the goods without issuing invoices and without payment of duty Held that - Merely because the company admitted the duty liability and paid the same, that is no ground for setting aside penalty. The Commissioner (Appeals) has either not noticed the admission statements of the Director or ignored in recording the same in his order-in-appeal. On both occasions huge shortages were found and the admission by the Director that the goods would have been cleared by his staff without payment of duty is sufficient to conclude that there was clandestine removal of the goods, Department appeals are allowed

Summary

Issues:
1. Appeal against setting aside penalties imposed on the respondent-company and Director by the Commissioner (Appeals).
2. Allegations of clandestine removal of goods without payment of duty.
3. Legal authorization for penalties and applicability of Section 11AC.
4. Extending option for payment of reduced penalty.

Analysis:
1. The case involved two appeals filed by the department against the Commissioner (Appeals) setting aside penalties on the respondent-company and Director. The shortages of finished goods and M.S. Wire were found during inspections, and the Director admitted to the clearance of goods without issuing invoices or paying duty. The original authority imposed penalties, which the Commissioner (Appeals) annulled. The department argued that penalties should be upheld as duties were paid voluntarily without retraction of admission statements.

2. The respondent's advocate contested the penalties, citing legal issues with the authorization process and the Director's alleged lack of involvement in clandestine clearances. The advocate also referenced relevant case law to support the defense. However, the Tribunal found the authorization objection belated and lacking legal basis, rejecting it. The Tribunal emphasized the substantial shortages found on two occasions, indicating clandestine removal, and upheld the penalties due to the Director's admission and duty payment.

3. The Tribunal highlighted that mere admission and payment of duty by the company did not absolve them of penalties under Section 11AC for clandestine removal. The Commissioner (Appeals) was criticized for not considering the Director's admission statements, which were crucial in determining the penalties. The Tribunal reinstated the original authority's orders, emphasizing the seriousness of the shortages and the Director's acknowledgment of irregularities.

4. Despite upholding the penalties, the Tribunal agreed to extend the option for payment of reduced penalties in line with a relevant High Court decision. The Tribunal allowed the respondent-company a specific period to pay reduced amounts; otherwise, the original penalties would apply. The judgment concluded by setting aside the Commissioner (Appeals) orders and restoring the original authority's decisions on penalties, while providing an opportunity for reduced penalty payments within a specified timeframe.