2017 (2) TMI 62 - AT - Central Excise

Restoration of Penalty - whether the penalty waived by the Ld. Commissioner (Appeals) on the ground that the duty along with interest was paid before the issuance of SCN, is justified? Held that - from the various judgments of the Hon ble Supreme Court and the High Court, it was ruled that only because duty and interest paid before issuance of show cause notice, penalty of Section 11AC cannot be waived - Ld. Commissioner (Appeals) has not examined whether there is revenue neutrality or there is any suppression of fact on the part of the appellant. Therefore the matter needs to be reconsidered by the Commissioner (Appeals) - appeal allowed by way of remand.

Summary

Issues:
- Differential duty demand confirmation due to amortization cost exclusion in final product value
- Challenge of duty liability payment before show cause notice issuance
- Confirmation of penalty under Section 11AC by Adjudicating Authority
- Appeal to Commissioner (Appeals) upholding demand but dropping penalty
- Revenue's challenge against penalty waiver based on subsequent judgments
- Appellant's argument against penalty citing revenue neutrality and lack of intent to evade duty
- Appellant's reliance on various judgments supporting their stance
- Tribunal's analysis of penalty imposition under Section 11AC and remand to Commissioner (Appeals)

Detailed Analysis:
1. The differential duty demand was upheld due to the exclusion of amortization cost in the final product value. The appellant contested the duty liability, having paid it with interest before the show cause notice was issued. The penalty under Section 11AC was confirmed initially but was dropped by the Commissioner (Appeals) based on the Machino Montel (I) Ltd. decision, citing payment before notice issuance.

2. The Revenue argued that subsequent judgments by the Supreme Court overruled the Machino Montel (I) Ltd. decision, making penalty under Section 11AC mandatory regardless of payment timing. They contended that the penalty could not be waived or reduced by the authority below.

3. The appellant's counsel emphasized that the case did not involve clandestine removal but arose from the omission of amortization cost in the assessable value. They asserted that the duty was promptly paid with interest upon identification of the discrepancy, leading to revenue neutrality as the duty paid was available as cenvat credit to the buyer. The counsel cited various judgments supporting the position that penalty under Section 11AC requires intent to evade duty, which was absent in this case.

4. The Tribunal noted that while the Commissioner (Appeals) relied on the Machino Montel (I) Ltd. decision to drop the penalty, subsequent judgments by higher courts clarified that payment before notice issuance did not warrant penalty waiver. The Tribunal highlighted the need for a fresh consideration by the Commissioner (Appeals) regarding revenue neutrality and intent to evade duty, remanding the matter for a new decision based on the facts and relevant judgments presented by both parties.

This comprehensive analysis encapsulates the key legal issues, arguments, and the Tribunal's decision, providing a detailed understanding of the judgment's intricacies.