2014 (5) TMI 607 - HC - Central Excise

Payment of duty of excise, interest and 25% penalty before issuance of Show Cause notice - challenge to the order of penalty - conclusion of proceedings before issue of SCN - while disposing the appeal of the assessee, tribunal observed that, the appellant s appeal is disposed of, with clear direction to lower authorities that the proceedings initiated against the appellant in this case stand concluded even before the issuance of show cause notice. - Held that - When the appellant disputed the basic duty liability by filing appeals, he could avail of reduced penalty to 25% under Section 11AC of the Act. This question, however, we need not go into since the Tribunal has already given its findings in favour of the appellant and the Revenue has not questioned the same - Decided against the assessee.

Issues:
1. Challenge to the judgment of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) dated 18th October 2013.
2. Confirmation of duty demand, interest, and penalty under Section 11AC of the Central Excise Act, 1944.
3. Justification of twice recovering excise duty on the same goods supplied to end user.
4. Examination of evidence on record and rejection of appeal by CESTAT.
5. Dispute regarding the duty and penalty deposited under duress.
6. Interpretation of Section 11A(2B) of the Central Excise Act, 1944.

Analysis:
1. The appellant challenged the judgment of the CESTAT, which confirmed the duty demand of Rs. 9,71,505/= with interest and imposed a penalty under Section 11AC of the Central Excise Act, 1944. The appellant raised questions regarding the examination of evidence, justification of recovering excise duty twice, and the correctness of the CESTAT's decision not to answer the evidence produced in the appeal.

2. The adjudicating authority confirmed the duty demand, interest, and penalty, which the appellant had already deposited partially. The Commissioner upheld this decision. The Tribunal observed that the appellant had paid the duty and a portion of the penalty, concluding that the issue should have been closed as per Section 11A(2B) of the Act. The Tribunal clarified that no further penalty would be imposed.

3. The appellant contended that the duty and penalty were paid under duress, arguing that the Tribunal should have examined the issues on merits. However, the Tribunal found that the duty was paid in full with interest before the show cause notice, and the authorities had discussed the evidence on record, concluding there was a case of clandestine removal of goods.

4. The Tribunal's decision was based on the appellant's payment of duty and a portion of the penalty before the issuance of the show cause notice. The appellant's argument that the duty should be adjudicated on merit was deemed invalid, as the authorities had already discussed the evidence and found evidence of clandestine removal of goods.

5. The Tribunal referred to Section 11A(2B) of the Act, which allows the person chargeable with duty to pay the amount of duty before the service of notice. However, this provision does not apply in cases involving fraud, collusion, willful misstatement, suppression of facts, or contravention of the Act with intent to evade payment of duty.

6. The Tribunal dismissed the Tax Appeal, upholding the decision of the CESTAT and concluding that the appellant's dispute regarding the duty and penalty paid under duress did not affect the findings of the authorities regarding the duty liability and penalty under Section 11AC of the Act.

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