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2015 (11) TMI 1342 - AT - Central ExciseDuty demand - Failure to make payment of duty on due dates - violation of sub-rule 3A of Rule 8 of Central Excise Rules, 2002 - confiscation under the provisions of Rule 5 of the Central Excise Rules, 2002 - penalty be imposed under Rule 25/27 of the Central Excise Rules, 2002 - Held that - penalty under Rule 25 can be imposed only on satisfaction of pre-condition, the condition laid down for the penalty under Section 11AC of the Act. As the return (TR-6) was filed, is recorded in the impugned order, the ingredients of Section 11AC are absent. Accordingly, I set aside the penalty imposed under Rule 25 of Central Excise Rules. However, the assessee will be liable to penalty under Rule 27 of the Act for an amount of ₹ 5000/-. Further, I hold that the SMB ruling in the case of Shivam Pressings (2015 (7) TMI 581 - CESTAT MUMBAI) as per incurium as the same has been passed ignoring the condition precedent contained in the Rule 25 itself. - Decided in favour of assessee.
Issues:
1. Default in payment of excise duty by the appellant. 2. Imposition of penalty under Rule 25 of the Central Excise Rules. 3. Applicability of penalty provisions under Section 11AC of the Act. 4. Interpretation of penalty provisions under Rule 27 of the Central Excise Rules. Issue 1: Default in payment of excise duty by the appellant The appellant, a manufacturer of excisable goods, failed to file ER-1 returns for April and May 2012 on time, leading to a delay in payment of excise duty. The Revenue alleged that the appellant had not paid the duty within 30 days of the due date, necessitating payment at the time of goods removal without utilizing CENVAT Credit. A show-cause notice was issued, prompting the appellant to explain the delayed payments due to financial constraints and the absence of the Excise dealing person. The Commissioner found no deliberate default to evade duty payment and imposed a penalty of Rs. 5 lakhs under Rule 25 of the Central Excise Rules. Issue 2: Imposition of penalty under Rule 25 of the Central Excise Rules The appellant contended that the penalty under Rule 25 should not apply as there was no intent to evade duty payment, a prerequisite for invoking Section 11AC of the Act. Citing the ruling in Commissioner of Central Excise Vs. Saurashtra Cement Ltd., it was argued that Rule 25 must align with the provisions of Section 11AC, which mandates penalties only in cases of fraud, collusion, or willful misstatement. Similarly, in Commissioner of Central Excise Vs. Harish Silk Industries, it was held that Rule 25 penalties require compliance with Section 11AC conditions. The Tribunal concurred, setting aside the penalty under Rule 25 but upheld a penalty of Rs. 5000 under Rule 27 for procedural lapses. Issue 3: Applicability of penalty provisions under Section 11AC of the Act The Tribunal, guided by the Gujarat High Court rulings, emphasized that penalties under Rule 25 hinge on meeting the conditions stipulated in Section 11AC. Since the appellant had filed the required returns and no intent to evade duty was established, the penalty under Rule 25 was deemed unjustified. The Tribunal, therefore, annulled the penalty under Rule 25 while affirming a nominal penalty under Rule 27 for non-compliance. Issue 4: Interpretation of penalty provisions under Rule 27 of the Central Excise Rules The Tribunal referenced a previous ruling involving a default in monthly duty payment to underscore that penalties under Rule 27 are civil obligations not contingent on willful intent. The penalty amount was reduced due to the absence of mens rea or deliberate intention to evade duty payment. The Tribunal dismissed the appeal, upholding the penalty under Rule 27 and emphasizing the civil nature of such penalties. The demand for duty payment was considered settled upon payment, further reinforcing the civil nature of the penalties. This comprehensive analysis of the legal judgment highlights the issues of default in duty payment, the imposition of penalties under specific rules, and the interpretation of penalty provisions under relevant sections of the Act and Rules. The Tribunal's decision reflects a nuanced understanding of penalty imposition requirements and aligns with precedents set by higher courts in similar cases.
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