2013 (11) TMI 984 - AT - Central Excise

Benefit of reduced Penalty under the Proviso to Section 11AC of Central excise Act Held that - There was no option in the orders-in-original given to the assessee to pay lower penalty in terms of proviso to Section 11AC of the act Following K.P. Pouches (P) Ltd. vs. Union of India 2008 (1) TMI 296 - HIGH COURT OF DELHI and CCE, Rohtak vs. J.R. Fabrics (P) Ltd. 2009 (4) TMI 72 - PUNJAB AND HARYANA HIGH COURT - where the entire amount of duty alongwith interest, if any, payable, had been paid before the issue of show cause notice and still in the order-in-original passed by the Adjudicating Authority, no option had been given to the assessee to avail of the option of lower penalty equal to 25% of the duty demand by paying the same within 30 days of communication of the order, the benefit of lower penalty under proviso to Section 11AC cannot be denied - the appellant cannot be denied the benefit of reduced penalty in terms of proviso to Section 11AC - the penalty under Section 11AC on the appellants is reduced to 25% of the duty demand confirmed Decided in favour of Assessee.

Summary

Issues:
1. Duty demand and penalty imposition confirmed by original Adjudicating Authorities.
2. Commissioner (Appeals) setting aside penalty but upholding duty demands.
3. Tribunal remanding matters for penalty reconsideration.
4. Denovo penalty adjudication by Commissioner (Appeals).
5. Appeal against Commissioner (Appeals) judgement on penalty imposition.
6. Applicability of proviso to Section 11AC for reduced penalty consideration.

Analysis:

1. The original Adjudicating Authorities confirmed duty demands and imposed penalties equal to the duty amount on goods found short during visits to the appellants' units. However, the Commissioner (Appeals) upheld the duty demands but set aside the penalties, citing full duty payment before show cause notices were issued. The Tribunal remanded the matters to the CCE (Appeals) for penalty review in light of relevant judgments.

2. The Commissioner (Appeals) reconsidered the penalty issue denovo and imposed penalties equal to the duty demands under Section 11AC, rejecting pleas for reduced penalties based on the proviso to Section 11AC. The Commissioner relied on the Apex court's judgement in a specific case to support the penalty imposition.

3. The appellant's counsel argued for the applicability of the proviso to Section 11AC, citing various High Court judgments that emphasized the benefit of reduced penalties when the disputed duty amount had been paid before show cause notices without the option for lower penalties being given by the Adjudicating Authority.

4. The Jt. CDR defended the impugned orders, stating that duty evasion was admitted, justifying the penalty imposition under Section 11AC based on elements like fraud, wilful misstatement, or contraventions of excise laws.

5. The Tribunal considered both sides' submissions and reviewed the records. It focused on the dispute regarding the extension of reduced penalties under the proviso to Section 11AC. Despite the Apex court's stance on penalty imposition, the Tribunal referred to High Court judgments supporting the benefit of reduced penalties in specific scenarios.

6. Ultimately, the Tribunal ruled in favor of the appellants, reducing the penalties to 25% of the duty demand confirmed due to the lack of an option for lower penalties in the original orders-in-original. The Commissioner (Appeals) orders were modified accordingly, and the appeals were disposed of with the penalty reduction granted.