2014 (5) TMI 1174 - AT - Central Excise

Penalty u/r 173Q and u/r 209A of CER on Shri H.M. Jhangiani Executive Director of the appellant firm - short payment of duty to the extent of 19, 61, 703.42 - the appellant had claimed that the assessments were provisional as the price lists had not been finally approved and the assessments had not been completed - Held that - There is a merit in the contention of the appellant that during the material period the assessments were provisional. On the other hand if the assessments had been finalized a copy of the final assessment order would be available with the department for the impugned period. Since at the relevant time the assessments had to be done by the Range Officer. No such evidence is forthcoming from the Revenue in this regard - In the absence of any such evidence the benefit of doubt has to be given to the assessee. The imposition of penalty when the assessments were provisional at the time of finalization based on the verification done by the Assistant Director (Costs) is clearly unsustainable - penalty set aside - however the demand confirmed in the impugned order is upheld as the assessment is not disputed - appeal allowed in part.

Summary

Issues Involved:
Appeal against Order-in-Original confirming duty demand and imposing penalties under Rule 173Q and Rule 209A - Dispute regarding penalties imposed on the appellant and its Executive Director - Whether assessments were provisional - Imposition of penalty under a non-existent provision - Proposal for confiscation of land and building and goods under Rule 173Q (2).

Analysis:

1. Duty Demand and Penalties Imposed:
The judgment involves an appeal against an Order-in-Original confirming a duty demand of Rs. 9,61,703.42 against the appellant, M/s. Blue Star Ltd., and imposing penalties under Rule 173Q and Rule 209A on the Executive Director. The appellant did not dispute the duty liability but contested the penalties imposed.

2. Provisional Assessments and Penalty Imposition:
The appellant argued that the assessments were provisional, as price lists were filed based on provisional costs and later revised based on final accounts. The Assistant Director (Costs) modified the cost data, leading to a duty shortfall. The appellant cited precedents to support the view that penalties should not be imposed for short payments during provisional assessments. The appellant also challenged the penalty under Rule 173Q, which was repealed.

3. Revenue's Position and Confiscation Proposal:
The Revenue contended that there was no evidence of provisional assessments and supported the imposition of penalties. The Revenue raised concerns about the Commissioner not addressing proposals for confiscation under Rule 173Q (2) in the show-cause notice.

4. Tribunal's Decision:
The Tribunal noted that both parties did not dispute the duty demands but disagreed on penalty imposition. The Tribunal found merit in the appellant's claim that assessments were provisional, as evidenced by incomplete price list approvals. Lack of actual cost submissions during adjudication indicated provisional assessments. The Tribunal held that penalties for provisional assessments were unsustainable, citing precedents. As the assessments were provisional, the question of confiscation did not arise.

5. Verdict and Conclusion:
The Tribunal concluded that the Revenue's appeal lacked merit, upholding the demand but setting aside the penalty on the appellant. The Tribunal partially allowed the appellant's appeal, affirming the demand but overturning the penalty imposition. The judgment highlighted the importance of distinguishing between provisional and final assessments in penalty determinations.

This detailed analysis covers the key issues raised in the judgment, the arguments presented by both parties, the legal precedents cited, and the Tribunal's decision on duty demands, penalties, and the provisional nature of assessments.