2009 (4) TMI 107 - AT - Central Excise

Mandatory Penalty Section 11AC Clandestine Removal of goods - the shortage of finished goods has been admitted by the Respondent and it has also been admitted that goods found short had been removed without payment of duty and without issue of any Central Excise invoices - the fact of clandestine removal stands established the penalties imposed u/s 11AC restored - Revenue s appeal allowed.

Summary

Issues:
- Appeal against Commissioner (Appeals) order upholding duty but setting aside penalty under Section 11AC of the Central Excise Act.
- Interpretation of the law regarding penalty under Section 11AC in cases of duty payment prior to show cause notice.
- Relevance and applicability of previous Tribunal judgments in similar cases.

Analysis:
1. The appeal was filed by the Revenue against the Commissioner (Appeals) order which upheld the duty demand against the Respondent but set aside the penalty imposed under Section 11AC of the Central Excise Act. The case involved a visit by Central Excise Officers to the Appellant's factory where a shortage of finished goods was detected, leading to a duty demand of Rs. 69,968. The duty was paid by the Appellant, and a penalty of the same amount was imposed under Section 11AC by the Deputy Commissioner. However, on appeal, the penalty was set aside by the Commissioner (Appeals) based on the grounds that the duty had been paid before the show cause notice was issued.

2. The Commissioner (Appeals) relied on previous Tribunal judgments, including the cases of Machino Montell (I) Ltd., Rashtriya Ispat Nigam Ltd. v. CCE, and Gaurav Mercantile Ltd., to support the decision of setting aside the penalty under Section 11AC. The Department challenged this decision, arguing that the Respondent had admitted to the removal of goods without payment of duty, constituting clandestine removal and attracting the provisions of Section 11AC. The Departmental Representative emphasized that the Tribunal's judgment in the case of Machino Montell (I) Ltd. had been reversed by the Punjab & Haryana High Court, making it no longer valid law.

3. After considering the submissions, the Member (T) found that the Respondent had admitted to the shortage of finished goods being removed without payment of duty, establishing clandestine removal. The Member noted that the Tribunal's judgment in the case of Machino Montell (I) Ltd. had been reversed by the Punjab and Haryana High Court, rendering it no longer applicable. Therefore, the Commissioner (Appeals)'s decision to set aside the penalty was deemed incorrect, and the penalty imposed by the Deputy Commissioner was restored. Consequently, the Revenue's appeal was allowed, and the impugned order was modified to reinstate the penalty on the Respondent under Section 11AC.

This detailed analysis of the judgment highlights the key issues, legal interpretations, and the reasoning behind the decision to restore the penalty under Section 11AC in the case.