2012 (10) TMI 823 - AT - Central Excise

Demand of duty and penalty confiscation - materials outside the premises Held that - Since construction activities were going on, the materials could not be accommodated in the premises - assessee has paid duty on the goods along with interest. Since duties and interest has been paid without any ingredient of intention to evade, present confiscation was unwarranted - Act of confiscation is penal in nature. Provision relating to that cannot be loosely invoked without motive being tested by evidence - interest not being disputed by the assessee, the confiscation is held to be bad. Penalty - certain procedural irregularities having been noticed. The appellant need not be penalised to the fullest extent of the duty leviable. Keeping in view that there is no cogent reason brought by Revenue to deny concession in penalty, the appellant is directed to pay penalty to the extent of 25% of the duty demand

Summary

Issues:
1. Consideration of explanation for materials found outside the premises.
2. Confiscation of goods and imposition of penalty based on intention to evade duty.
3. Procedural irregularities in imposing penalty.

Analysis:
1. The appellant's counsel argued that the investigating authority did not consider the explanation that the materials found outside the premises were not disowned by the assessee but were kept there due to construction activities and lack of space inside. The appellant had paid duty on the goods along with interest, indicating no intention to evade. The counsel contended that the confiscation was unwarranted, and penalty should not be imposed as the appellant sought to settle the dispute after paying the duty.

2. The Departmental Representative (DR) supported the lower authorities' orders, stating that since the appellant did not intend to bring back the goods inside, it amounted to clandestine removal. However, the Tribunal noted that the appellant did not dispute the duty element and did not deny the displacement of goods. The reason of inadequate space inside the premises seemed genuine as there was no investigation into this aspect. The Tribunal found no evidence of an oblique motive or ill intention to cause evasion, leading to the conclusion that the confiscation was unjustified. Referring to a previous case and the arguments of the appellant's counsel, the Tribunal held the confiscation to be improper.

3. Regarding the penalty, the Tribunal observed certain procedural irregularities and decided that the appellant should not be penalized to the full extent of the duty leviable. Considering the lack of substantial reasons provided by the Revenue to deny a penalty concession, the Tribunal directed the appellant to pay a penalty amounting to 25% of the duty demand within a specified timeframe. The appellant's counsel mentioned a stay order and requested the already paid amount to be adjusted towards the penalty, subject to verification by the adjudicating authority.

In conclusion, the appeal was partly allowed, confirming the duty and interest payment, declaring the confiscation as unjustified, and imposing a penalty of 25% of the duty demand due to procedural irregularities and lack of evidence of intention to evade duty.