2017 (5) TMI 1384 - AT - Central Excise

Imposition of penalty - case of appellant is that their case is covered by the provisions of Sub-section 2B of Section 11A of CEA, 1944 and as provided in said Sub-section, there was no need for issuance of present SCN and had there been no SCN, the question of imposition of penalties did not arise - Held that - the said Sub-section (2B) of Section 11A of CEA, 1944 provides that when an assessee on his own ascertainment pays the amount of duty and interest thereon before issue of SCN, then SCN demanding the said amount cannot be served on the assessee - the SCN has not at all dealt with the aspect as to why the assessee s present case is not covered by the provisions of said Sub-section (2B) of Section 11A of CEA, 1944 and how the demand of ₹ 43,46,542/- is tenable in spite of provisions of Sub-section (2B) of Section 11A of CEA, 1944 - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Appellants procured moulds and dies for manufacturing final products without paying duty.
2. Show cause notice issued for clearing moulds and dies without duty payment.
3. Appeal against Order-in-Original confirming duty demand and penalty imposition.
4. Applicability of Sub-section 2B of Section 11A of Central Excise Act, 1944.
5. Interpretation of provisions regarding duty payment and issuance of show cause notice.

Analysis:
The case involved the appellants procuring moulds and dies for their final products without paying Central Excise Duty, leading to a show cause notice being issued on this matter. The notice invoked provisions of Rule 14 of Cenvat Credit Rules and called for justification on the duty amount and penalty imposition. The Order-in-Original confirmed the duty demand and penalty, prompting the appellants to appeal before the Commissioner (Appeals) who upheld the confirmation and penalty imposition, resulting in the current appeal before the Tribunal.

During the hearing, the appellant contended that their case fell under Sub-section 2B of Section 11A of the Central Excise Act, 1944. They argued that as per this provision, since they had paid the duty and interest before the show cause notice was issued, there was no basis for the penalties imposed. On the other hand, the Departmental Representative supported the impugned Order-in-Appeal.

Upon careful consideration of the arguments and examination of the records, the Tribunal observed that Sub-section 2B of Section 11A of the Central Excise Act, 1944 states that if an assessee pays the duty and interest before the show cause notice is issued, the notice demanding the amount cannot be served. However, this provision does not apply in cases involving fraud, collusion, willful misstatement, or contravention of the Act with intent to evade duty payment. The show cause notice in this case did not address why the appellant's situation did not fall under the purview of Sub-section 2B and failed to justify the demand despite the payment made by the appellant. Consequently, the Tribunal deemed the show cause notice as legally untenable, leading to the setting aside of the Order-in-Original and Order-in-Appeal, thereby allowing the appeal and entitling the appellant to consequential relief as per the law.