2017 (8) TMI 1033 - HC - Central Excise

Whether the Hon ble Tribunal is justified in maintaining the penalty under Section 11AC when admittedly extended period of limitation contemplated under Section 11A of Central Excise Act, 1944 is not invoked and there is absolutely no intention to evade duty? - Held that - The admission made by the Director was that the shortage was not denied and, moreover, the goods have been removed without the payment of duty. Once the fact is established that the goods have been removed without the payment of duty, clearly the penalty become imposable under Section 11AC and it is for this reason that the penalty has been imposed - reliance placed in the case of in the case of Usha Martin Construction Steel Ltd. v. Commissioner of Income Tax, Kanpur 2014 (11) TMI 537 - ALLAHABAD HIGH COURT , wherein also the Allahabad High Court ruled that in a case where duty has escaped payment at appropriate stage, penalty would be attracted - appeal dismissed - decided against assessee.

Summary

Issues:
Central Excise Appeal under Section 35G of Central Excise Act, 1944 against the Tribunal's order. Questions of law: 1. Restoration of adjudication order under Section 11AC. 2. Justification of penalty under Section 11AC without invoking Section 11A.

Analysis:
1. The case involved a Central Excise Appeal against the Tribunal's order dated 30-12-2010. The appellant was issued a show cause notice regarding a shortage of goods attracting duty. The appellant's factory was visited by Central Excise Officers, and a shortage of goods was alleged. The appellant filed a reply and the case was adjudicated, imposing a penalty on the director. The Commissioner (Appeals) allowed the appeal, but the Tribunal restored the adjudication order imposing the penalty.

2. The Tribunal found that there was no denial by the appellant regarding the shortage of goods found during the visits to the factory. The appellant's Director admitted the shortages and payment of duty on the amount. It was established that goods were removed without payment of duty, leading to the imposition of penalty under Section 11AC. The Tribunal relied on a decision of Punjab and Haryana High Court and a ruling of Allahabad High Court to support the imposition of penalty in cases where duty has escaped payment.

3. The Tribunal emphasized that the appellant did not deny the shortage of goods or the removal of goods without payment of duty. Based on the established facts, the Tribunal concluded that the penalty under Section 11AC was justified. The Court followed the rulings cited and upheld the imposition of penalty. The appellant's counsel could not refute the factual position, leading to the dismissal of the appeal in favor of the Department.

4. In conclusion, the questions of law raised in the appeal were answered in favor of the Department and against the appellant. The appeal was dismissed accordingly, affirming the imposition of penalty under Section 11AC due to the removal of goods without payment of duty.