2013 (8) TMI 204 - AT - Central Excise

Imposition of penalty - Commissioner upheld penalty against assessee - Held that - copy of statement of the partner of the appellant tendered before investigating team the last invoice issued by them was numbering 266 dated 28.7.2008 - there has been clandestine removal and appellant is liable for imposition of penalty under Rule 25 subject to provisions of section 11AC. This is fit case for imposition of equivalent penalty. Benefit of reduced penalty as provided under section 11AC is not available as penalties have been have been levied under Rule 25. Reference of section 11AC in the rules is only for limiting the penalty equalvant to duty/cenvat involved - Decided against assessee.

Summary

Issues:
1. Imposition of penalty under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944.
2. Denial of benefit of depositing 25% penalty within 30 days of the show cause notice.
3. Allegations of clandestine removal of goods and imposition of penalty on the appellant.
4. Applicability of Section 11AC in cases of dealers as opposed to manufacturers.

Analysis:
1. The appellant, engaged in trading iron and steel products, faced penalties for a shortage of Silicon Manganese during a visit by the Preventive staff. The Adjudicating authority debarred the appellant from passing on the credit and imposed a penalty under Rule 25 read with Section 11AC. The Commissioner (Appeals) upheld the penalty, citing misstatement and suppression of facts by the appellant.

2. The appellant argued that they had deposited 25% of the penalty before the order was issued, but the Commissioner (Appeals) denied the benefit, stating that Section 11AC is not applicable to dealers like the appellant. The appellant contended that the penalty was imposed beyond the scope of the show cause notice.

3. The Department alleged that the appellant clandestinely removed goods without proper documentation, contravening Rules 10 and 11. The appellant's explanation for the shortage was deemed unacceptable, leading to penalties under Rule 25 read with Section 11AC.

4. The Tribunal examined the case and noted that Section 11AC pertains to duty levy issues for manufacturers, not dealers like the appellant. The Tribunal agreed with the Commissioner (Appeals) that the penalties under Rule 25 were justified due to the proven clandestine removal of goods. The Tribunal upheld the penalties imposed on the appellant, emphasizing the absence of reduced penalty benefits under Section 11AC.

In conclusion, the Tribunal upheld the order-in-appeal, affirming the penalties imposed on the appellant for the shortage of goods and the associated violations of Central Excise rules.