2017 (1) TMI 1128 - AT - Central Excise

Quantum of penalty, imposed u/s 11AC of the act read with rule 25 of CER, 2002 enhanced - evasion of tax by way of mis-declaring the description of finished goods - on pointed out, differential tax paid - Commissioner (Appeals), was pleased to enhance the amount of penalty observing that the case is not fit for lenient imposition of penalty - Held that - there is no confiscation of any goods in the facts of this case which is a condition precedent for imposition of penalty under Rule 25 read with Section 11 AC of the Act - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Enhancement of penalty under section 11AC of the act read with rule 25 of CER, 2002.

Detailed Analysis:

Issue 1: Enhancement of Penalty
The appellants appealed against an order enhancing the penalty under section 11AC of the act read with rule 25 of CER, 2002. The case involved the misdeclaration of goods cleared by the appellants, leading to an investigation by the Revenue. The appellants admitted the mistake and deposited the differential duty with interest. Subsequently, a show cause notice was issued proposing to demand the short-paid duty and to levy penalties. The original adjudication confirmed the duty amount and imposed penalties on the company and its director. The Commissioner (Appeals) further enhanced the penalties, justifying it by stating that the evasion occurred through misdeclaration of finished goods. The appellants challenged this decision before the Tribunal.

Issue 2: Legal Arguments
The appellants argued that they had cleared goods and waste, paid excise duty based on invoices, and rectified the duty payment upon being informed by the Revenue. They contended that no show cause notice was necessary as they had already paid the duty owed. Citing legal precedents, including a Karnataka High Court ruling, they emphasized that the determination of duty payment is a prerequisite for imposing penalties. They also referred to a Supreme Court case where the Tribunal set aside a penalty due to lack of specificity in the contravention clause cited in the notice.

Issue 3: Revenue's Position
The Revenue defended the impugned order and cited a Punjab & Haryana High Court case where the deposit of duty before a show cause notice did not absolve the assessee of liability if the situation warranted penalty imposition. However, in the present case, there was no confiscation of goods, which is a prerequisite for imposing penalties under Rule 25 read with Section 11 AC of the Act.

Judgment:
After considering the arguments, the Tribunal found that no confiscation of goods occurred, which is essential for penalty imposition under the relevant provisions. Consequently, the appeals were allowed, and the impugned orders enhancing the penalties were set aside. The judgment was delivered in the open court, providing relief to the appellants in this penalty enhancement dispute.