2023 (2) TMI 1234 - HC - Central Excise

Waiver of penalty - HELD THAT - A connected appeal arising out of the very same impugned order was heard by the Division Bench in Commissioner Of Central Excise, Haldia Commissionerate Versus W.B. Handloom Powerloom Development Corporation Ltd. (Tantushree) 2022 (9) TMI 561 - CALCUTTA HIGH COURT , the appeal was allowed and the substantial question of law was answered in favour of the revenue. Following the above decision, this appeal (CEXA/3/2007) is allowed and the substantial question of law is answered in favour of the revenue.

Summary

Issues:
Appeal under Section 35G of the Central Excise Act, 1944 challenging a composite order dated 14th July, 2006 passed by the Customs, Excise & Service Tax Appellate Tribunal, East Zone Bench at Kolkata. Substantial question of law: Whether the order setting aside the penalty on the respondent was correct in law.

Analysis:
The High Court heard the appeal filed by the revenue challenging the Tribunal's order. A connected appeal was previously allowed, favoring the revenue, based on evidence showing misuse of government notifications by the respondent. The adjudicating authority found a modus operandi where the respondent acted as a commission agent, not fulfilling the intended purpose of the exemption notifications. The authority highlighted discrepancies in the sale process, indicating that the actual sale occurred between the spinning mill and traders, with the respondent merely receiving a commission. The respondent failed to provide evidence to counter these findings.

The adjudicating authority also noted issues with the certification process required for the exemption. Certificates were issued after the clearance of yarn, not based on factual verification by the respondent, but on spinning mill certificates. The authority concluded that the notification's purpose was defeated as the yarn was sold to various entities without control or verification of its use in handlooms. Consequently, a penalty of Rs.10,00,000/- was imposed on the respondent.

The Tribunal's interference with the adjudicating authority's order was deemed erroneous by the High Court. The Tribunal's decision was criticized for not addressing the evidence presented by the authority regarding the modus operandi and certification process. The High Court found the Tribunal's decision to be perverse as it failed to appreciate the facts and evidence on record. Therefore, the High Court allowed the appeal, answering the substantial question of law in favor of the revenue, in line with the previous decision in a connected appeal.

In conclusion, the High Court upheld the appeal, emphasizing the importance of adhering to the legal provisions and evidence presented in such cases. The judgment highlighted the significance of proper verification and compliance with the conditions stipulated in government notifications to prevent misuse and ensure the intended benefits reach the rightful recipients.