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2014 (3) TMI 914 - AT - Central ExciseRecall and rectification of order - Quantum of penalty - High Court and Supreme Court have dismissed the reference application - Held that - Once the provisions of Section 11AC are held to be invocable against the appellants, the Tribunal has no jurisdiction to reduce the penalty. In the facts of the present case, we find that the Tribunal vide its earlier order dated 11-10-2000 has held the appellants liable to penalty in terms of provisions of Section 11AC. The said order of the Tribunal stands confirmed by the Hon ble High Court and subsequently by the Hon ble Supreme Court - Once the provisions of Section 11AC has been held to be applicable in the appellants case, calling for imposition of penalty upon them, such penalty has to be to the extent of 100% of the duty amount. As such by following the Apex Court s judgment in the case of Rajasthan Spinning & Weaving Mills as also in the case of Dharamendra Textiles, we enhance the penalty equivalent to the duty confirmed against the appellants - Decided against assessee.
Issues:
1. Recalling of ex parte order due to absence of Senior Advocate. 2. Confirmation of demand of duty and penalty against the company. 3. Reconsideration of penalty amount based on Supreme Court judgment. 4. Discretion of Tribunal in reducing penalty under Section 11AC. 5. Applicability of 100% penalty under Section 11AC. Issue 1: Recalling of ex parte order The Tribunal considered the appellant's request to recall Order Nos. 765-767/2011-EX, which were passed ex parte due to the absence of the Senior Advocate. The Senior Advocate was delayed due to prior commitments before the Hon'ble Supreme Court. The Tribunal recalled the final order and proceeded to decide the issue. Issue 2: Confirmation of demand of duty and penalty The Commissioner (Appeals) confirmed a demand of duty and penalty against the company. The Tribunal confirmed the duty demand but reduced the penalty to Rs. 5 lakhs considering the case's overall circumstances. The High Court dismissed the reference application, leading to the confirmation of duty demand and penalty against the company. Issue 3: Reconsideration of penalty amount The High Court remanded the matter to the Tribunal for reconsideration of the penalty amount based on the Supreme Court's decision in the case of Rajasthan Spinning & Weaving Mills. The Tribunal was directed to reconsider the penalty in accordance with the law. Issue 4: Discretion of Tribunal in reducing penalty The appellant argued that the penalty under Section 11AC should not be imposed as the allegations were for irregular availment of credit without suppression or misstatement of facts. However, the Tribunal held that once Section 11AC applies, a 100% penalty is mandatory as per the Supreme Court's decision in Dharamendra Textiles. The Tribunal stated it cannot review earlier orders imposing penalties. Issue 5: Applicability of 100% penalty under Section 11AC The Tribunal held that once Section 11AC applies, a penalty equivalent to 100% of the confirmed duty must be imposed. Following the Supreme Court's judgments, the penalty was enhanced to match the confirmed duty amount. The Tribunal emphasized that penalties under Section 11AC cannot be reduced once they are deemed applicable. This comprehensive analysis of the judgment covers the issues related to recalling of the ex parte order, confirmation of duty demand and penalty, reconsideration of penalty amount, Tribunal's discretion in reducing penalties, and the applicability of a 100% penalty under Section 11AC based on relevant legal precedents and court decisions.
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