2012 (9) TMI 533 - AT - Central Excise

Unauthorized clearance - suppressing of actual production and engaged in clandestine removal without payment of duty - Held that - As nothing submitted to contradict concurrent finding of both the Authorities below against suppression of clearances which was outcome of suppressed production, this calls for confirmation of duty element - against assessee. Penalty imposed under Rule 25 of Central Excise Rules, 2002 - Held that - As penalty imposition by adjudication is without finding the element of section 11AC & there was no confiscation done therefore, the present case certainly falls under Rule 25 of Central Excise Rules, 2002, thus order to reducing the penalty to Rs. 10,000/- under Rule 25 may not be improper.

Summary

Issues:
1. Unauthorised clearance and duty penalty sustenance.
2. Suppressed production leading to clandestine removal of excisable goods.
3. Confirmation of duty element against suppression of clearances.
4. Imposition of penalty under Rule 25 of Central Excise Rules, 2002.

Analysis:
1. The appellant contested the appeal, arguing that the appellate finding lacked proper examination and testing of evidence. It was claimed that no unauthorised clearance occurred, and due to inadequate scrutiny of documents, the demand for duty and penalty was unjustified. However, the investigation revealed incriminating documents in two files at a common go-down in Delhi where products branded as BIOTIQUE and another product by M/s. Bio Veda Research Lab. Pvt. Ltd. were stored. The authorities found that there was suppression of actual production and clandestine removal of excisable goods, leading to the duty assessment under relevant sections of the Central Excise Act, 1944. The duty amount and interest were calculated based on the assessable value of the goods cleared during the specified period.

2. The Adjudicating Authority confirmed the suppression of clearances due to suppressed production, necessitating the confirmation of the duty element. The appellate authority upheld this finding, stating that there was no contradiction against the suppression of clearances. Consequently, the duty element was ordered to be confirmed. The argument against the automatic imposition of penalty under Rule 25 of the Central Excise Rules, 2002 was raised by the appellant, suggesting that equal penalty should be imposed only if elements of section 11AC of the Central Excise Act, 1944 were present.

3. Rule 25 outlines specific circumstances for invoking penalties if there is an intention to evade duty, and the penalty imposed should not exceed the duty element. In this case, as there was no confiscation done, the penalty was reduced to Rs. 10,000 under Rule 25. The judgment dismissed the appeal except for the reduction in penalty under Rule 25 of the Central Excise Rules, 2002 to Rs. 10,000. The decision was made based on the circumstances of the case without setting a precedent for general penalty reduction under the law.