2017 (3) TMI 1358 - AT - Central Excise

HSD - removal of duty free Diesel from EOU to DTA unit - penalty - request for waiver of penalty on the ground that the duty liability with interest having been discharged before the issue of SCN - Held that - On a specific query from the bench, as to whether the appellant had informed to the departmental authority as to the existence of underground pipelines, the ld. Counsel admits fairly that it was not informed to the department - the adjudicating authority was correct in imposing equivalent amount of penalty on the appellant - appeal dismissed - decided against assessee.

Summary

Issues:
Classification of goods, imposition of penalty for wrong availment of Cenvat credit, duty liability on High Speed Diesel (HSD) used by Domestic Tariff Area (DTA) procured for Export Oriented Unit (EOU), imposition of penalty under Section 11AC and recovery of interest under Section 11AB.

Classification of Goods:
The Tribunal previously held that the impugned order was liable to be set aside, but the High Court upheld the Tribunal's decision on the classification of goods. However, the High Court remanded the matter back to the Tribunal to appreciate the evidence regarding the imposition of an equivalent penalty on the HSD used by DTA, which was procured for EOU. The Tribunal had initially held that since the duty liability on the HSD was paid along with interest before the show cause notice, no penalty arises. The High Court disagreed with this finding and emphasized the need to consider the factual matrix.

Imposition of Penalty for Wrong Availment of Cenvat Credit:
The appellant argued that the consumption of HSD procured duty-free for EOU by DTA was inadvertent, and they promptly discharged the duty liability upon discovery. The appellant cited precedent cases to support the contention that equivalent penalty imposition is not mandatory in cases of wrong availment of Cenvat credit. The Departmental Representative reiterated the lower authority's findings.

Duty Liability on HSD Used by DTA Procured for EOU:
The adjudicating authority found that the appellant had cleared duty-free HSD from EOU to DTA without permission and without payment of duty. The appellant deposited the Central Excise duty upon detection of this irregularity by Central Excise officers. The authority concluded that the appellant would have continued to evade duty if not detected. The appellant did not inform the department about the existence of underground pipelines, which further supported the imposition of an equivalent penalty.

Imposition of Penalty under Section 11AC and Recovery of Interest under Section 11AB:
The adjudicating authority specifically held that penalty under Section 11AC and interest under Section 11AB were imposable on the appellant due to the transportation of duty-free diesel from EOU to DTA without payment of duty. The authority justified the penalty based on the factual matrix presented and the failure of the appellant to inform the department about the underground pipelines. The Tribunal upheld the decision of the adjudicating authority and found no reason to interfere with the order.

In conclusion, the Tribunal affirmed the impugned order's decision to confirm duty liability with interest and impose an equivalent penalty for the removal of duty-free diesel from EOU to DTA, as the factual circumstances supported the imposition of penalty under Section 11AC and recovery of interest under Section 11AB.