2012 (8) TMI 855 - AT - Central Excise

Penalty - Enhancement of penalty - Wrong availment of Credit - Malafide intention - Held that - penalty on the managing director need not be imposed when the assessee was penalized. Further it also cannot be said that Commissioner has not considered the gravity of the offence of the director. He has said that gravity of the offence of the director cannot be more than that of the company. Having regard to the decision of the Tribunal and the quantum of penalty imposed on the assessee and having regard to the fact that penalty, interest and duty was paid by the assessee promptly for which also the director can be said to be responsible and having regard to the facts and circumstances of the case, I consider that penalty on the director need not be enhanced - There is no indication that director received extra benefits from the company for availing the wrong benefit. In view of the fact that he has not received any extra benefit or personally did not benefit more than what he was entitled to because of wrong availment of credit, I consider that penalty of Rs.1,25,000/- confirmed in the impugned order is sufficient - Decided against Revenue.

Issues:
1. Reduction of penalty imposed on the director by the Commissioner (Appeals).
2. Challenge by Revenue against the reduction of penalty.
3. Consideration of gravity of the offence committed by the director.
4. Comparison of penalty imposed on the director with that on the assessee.
5. Assessment of whether penalty on the director should be enhanced.

Analysis:

Issue 1: Reduction of penalty imposed on the director by the Commissioner (Appeals)
The Commissioner (Appeals) reduced the penalty imposed on the director, considering that the penalty on the assessee company had been reduced to 25% since they paid promptly. The argument made was that the penalty on the director should be proportionate to the offence committed by him, independent of the penalty on the company. The director challenged the reduction, stating that the penalty should be commensurate with his involvement.

Issue 2: Challenge by Revenue against the reduction of penalty
The Revenue challenged the reduction of penalty on the director, arguing that the Commissioner (Appeals) did not provide sufficient reasons for the reduction. The Revenue contended that the penalty on the director should not be less than the penalty imposed on the company. The Tribunal considered the Revenue's appeal against the reduction of penalty on the director.

Issue 3: Consideration of gravity of the offence committed by the director
The Tribunal examined the gravity of the offence committed by the director in relation to the wrongful availment of cenvat credit. It was noted that the director was aware of the wrongful activity but did not personally benefit more than entitled to. The Tribunal assessed whether the penalty on the director should be enhanced based on the gravity of his involvement in the offence.

Issue 4: Comparison of penalty imposed on the director with that on the assessee
The Tribunal compared the penalty imposed on the director with that on the assessee company. Referring to previous decisions, the Tribunal highlighted that when the company was penalized, it was not necessary to impose a separate penalty on the managing director. The Tribunal considered whether the penalty on the director should be equivalent to that on the company or if a lesser penalty was justified.

Issue 5: Assessment of whether penalty on the director should be enhanced
After reviewing the circumstances of the case and the quantum of penalty imposed on the assessee, the Tribunal concluded that the penalty on the director did not need to be increased. It was determined that the penalty of Rs.1,25,000/- confirmed in the impugned order was sufficient, considering that the director did not receive extra benefits personally from the wrongful activity. The Tribunal rejected the Revenue's appeal and disposed of the cross objection filed by the respondents.

This detailed analysis of the judgment provides insights into the considerations made by the Tribunal regarding the penalty imposed on the director in relation to the offence committed by the company.

← Previous Next →