2013 (7) TMI 753 - AT - Central Excise

Default of duty - Commissioner deleted penalty holding that it was intentional offence - Held that - Respondents nowhere accepted the clandestine manufacture and removal of their final product. Further, except the shortages, there is no corroborative evidence indicating any removal of the Respondents final product. The fact that the respondents have not disputed the duty confirmation and have deposited the same so as to avoid the litigation, does not lead to the fact of removal of goods without payment of duty. Further the duty stands paid by the Respondents, immediately on detection - Decided against Revenue.

Summary

Issues:
1. Imposition of penalty on the respondent for duty shortage.
2. Appeal against the order of the Commissioner (Appeal) setting aside the penalty.
3. Interpretation of provisions of Section 11A 2(B) and 11 AC.
4. Assessment of evidence regarding clandestine manufacture and removal of final product.
5. Upholding the decision of the Commissioner (Appeals) and rejecting the Revenue's appeal.

Issue 1: Imposition of penalty on the respondent for duty shortage
The case involved a penalty imposed on the respondent due to a duty shortage of Rs. 1,09,953 found during a visit to their factory. The authorized representative of the appellant acknowledged the shortage but attributed it to incorrect accounting during a busy period. Despite the shortage, the duty amount was immediately deposited by the appellant to avoid litigation.

Issue 2: Appeal against the order of the Commissioner (Appeal) setting aside the penalty
The Revenue filed an appeal against the order of the Commissioner (Appeal) who set aside the penalty. The Commissioner observed that the shortage was not a deliberate or intentional offense and referred to provisions of Section 11A 2(B) and 11 AC in support of setting aside the penalty.

Issue 3: Interpretation of provisions of Section 11A 2(B) and 11 AC
The Tribunal analyzed the application of Section 11A 2(B) in the case, noting that the respondent's representative did not admit to clandestine manufacture or removal of goods. The Tribunal agreed with the Commissioner (Appeal) that the provision of Section 11A 2(B) was applicable in this scenario, as the duty was paid immediately upon detection of the shortage.

Issue 4: Assessment of evidence regarding clandestine manufacture and removal of final product
The Tribunal found no corroborative evidence supporting the claim of clandestine manufacture or removal of the final product by the respondent, apart from the shortages. The fact that the duty was promptly paid upon detection further indicated no intentional evasion.

Issue 5: Upholding the decision of the Commissioner (Appeals) and rejecting the Revenue's appeal
After considering all arguments and evidence, the Tribunal upheld the decision of the Commissioner (Appeals) to set aside the penalty. The Tribunal concluded that the respondent's actions did not amount to deliberate evasion, and the duty was paid promptly upon discovery of the shortage. Therefore, the Revenue's appeal was rejected.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision on each aspect of the case.