2014 (12) TMI 738 - HC - Central Excise

Shortage of goods - Penalty u/s 11AC - Whether on the facts and circumstances of the case, the Tribunal was justified in restoring the penalty - Held that - There was a huge shortage of finished goods for which no explanation was offered by the appellant at the time of stock checking. It means that the appellant had admitted the shortage and paid the duty accordingly. Thus, the appellant was unable to give any suitable explanation for the shortage of the finished goods. This is an admission by the appellant that the goods found short had been removed without payment of the duty. The method for clandestinely removal of the goods is not required to be explained. Since, it is a case of the shortage of the finished goods for which the appellant has no explanation, so the provision of Section-11AC for levy of the penalty and Rule-26 for levy of the penalty on the authorized signatory would be attracted. - no reason to interfere with the impugned order - Decided against the assessee.

Summary

Issues:
1. Review application against the operative portion of the order.
2. Appeal filed against the order of the Customs Excise & Service Tax Appellate Tribunal.
3. Substantial question of law regarding restoration of penalty.
4. Shortage of finished goods leading to duty demand and penalty imposition.
5. Interpretation of Central Excise Act, 1944 regarding penalty levy.

Review Application Issue:
The High Court allowed the review application filed by the appellant against the operative portion of the order, emphasizing that the review was not against the main order but only the operative portion. The court noted that the appellant was given the certified copy of the operative portion only, leading to the filing of the review application. Consequently, both orders dated 16.9.2014 were recalled to remove ambiguity.

Appeal Against Tribunal's Order:
The appellant, an assessee, filed an appeal against the order passed by the Customs Excise & Service Tax Appellate Tribunal, New Delhi. The appeal was admitted based on the substantial question of law regarding the justification of restoring the penalty imposed.

Substantial Question of Law Issue:
The case involved a shortage of finished goods detected during a stock verification at the appellant's factory premises, leading to duty demand and penalty imposition under Section-11AC of the Central Excise Act, 1944. The Tribunal restored the penalty, prompting the appellant to challenge the decision.

Shortage of Finished Goods and Penalty Imposition:
The appellant contended that the shortage was due to the verification method used, which could lead to variations and not necessarily indicate actual shortages. The appellant had paid the central excise duty on the goods in question earlier, arguing that no penalty should be levied as per Section-11A(2B) of the Act. However, the court noted that the appellant failed to provide a satisfactory explanation for the shortage, leading to the admission that goods were removed without duty payment, justifying penalty imposition under Section -11AC and Section -26.

Interpretation of Central Excise Act, 1944:
After considering the arguments from both parties and examining the evidence, the court upheld the impugned order, citing the appellant's admission of the shortage and failure to explain it adequately. The court found no grounds to interfere with the Tribunal's decision, sustaining the penalty levy based on the provisions of the Central Excise Act, 1944.

Conclusion:
The High Court dismissed the appeal filed by the assessee, affirming the Tribunal's decision to restore the penalty. The court answered the substantial question of law in the affirmative, ruling against the appellant-assessee and upholding the penalty imposition.