2017 (5) TMI 602 - AT - Central Excise

Penalty u/s 11AC - wrongful availment of CENVAT credit - appellant have paid entire duty along with interest before issuance of SCN - Held that - there is no dispute that duty alongwith interest was paid prior to issue of SCN. But non-payment of duty due to suppression of fact on the part of the appellant as the fact related to non-payment of duty was no disclosed to the department. Accordingly there is suppression of facts - In case of suppression of facts Section 11A(2B) is not applicable therefore penalty was correctly imposable u/s 11AC. As per the Board Circular dated 22-5-2008, the adjudicating authority must give the option contained in first and second proviso to Section 11AC in order-in-original - appellant should be given one opportunity for exercising option of 25% penalty. Matter remanded to the adjudicating authority - appeal allowed by way of remand.

Summary

Issues involved:
Appeal against penalty under Section 11AC, wrongful availing of Cenvat Credit, suppression of facts, imposition of penalty without offering the option of reduced penalty, interpretation of Section 11A(2B), applicability of Board Circular on penalty imposition.

Analysis:

1. Appeal against Penalty under Section 11AC:
The appellant appealed against the penalty imposed under Section 11AC by the adjudicating authority. The duty demand was not challenged as it was paid along with interest. The appellant specifically contested the penalty imposition.

2. Wrongful Availing of Cenvat Credit:
The case involved the wrongful availing of Cenvat Credit by the appellant. The confirmed demands included availing credit on capital goods exclusively used for exempted job work, inputs used in exempted goods, capital goods shifted to another premises, and duty demand on amortized cost of dies/fixtures. The total demand amounted to 59,82,570/-.

3. Suppression of Facts and Imposition of Penalty:
The Revenue argued that there was suppression of facts by the appellant, leading to the imposition of penalty under Section 11AC. The extended period of five years was invoked due to suppression, making Section 11A(2B) inapplicable. The appellant's failure to disclose non-payment of duty to the department was considered as suppression of facts.

4. Imposition of Penalty without Offering Reduced Penalty Option:
The appellant contended that the adjudicating authority did not offer the option of paying a reduced penalty of 25%. The Revenue argued that the appellant did not pay the 25% penalty within the stipulated period, thus forfeiting the option. Citing relevant judgments, the issue of the reduced penalty was extensively debated.

5. Interpretation of Section 11A(2B) and Board Circular:
The Tribunal analyzed the applicability of Section 11A(2B) in cases of suppression of facts. The Tribunal referred to a Board Circular mandating the mention of the provisions of Section 11AC in the Order-in-Original. The Tribunal directed the adjudicating authority to grant the appellant an opportunity to exercise the option of reduced penalty of 25% in compliance with the Circular.

In conclusion, the Tribunal disposed of the appeal by remanding the matter to the adjudicating authority to offer the appellant the option of reduced penalty in accordance with the Board Circular. The judgment highlighted the importance of disclosing facts to the department and the procedural requirements for imposing penalties under Section 11AC.