2017 (9) TMI 290 - AT - Central Excise

Penalty u/r 25(1)(a) of Central Excise Rules 2002 - default in payment of central excise duty - sub-rule (3A) of Rule 8 - Held that - The decision of Praweg Conveyors 2016 (8) TMI 238 - CESTAT MUMBAI has been passed in identical circumstances relying on the decision of the Hon ble High Court in Indsur Global Ltd. 2014 (12) TMI 585 - GUJARAT HIGH COURT , where it was held that it is not the case of non levy/ short levy, non payment/short payment of duty by suppression or willful mis-statement, fraud and collusion or contravention of any provision of this act or rule made with intent to evade payment of duty, therefore appellant is not liable for penalty under Rule 25 - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Imposition of penalty under Rule 25(1)(a) of Central Excise Rules 2002.

Analysis:
The appellant challenged the penalty imposed under Rule 25(1)(a) of the Central Excise Rules 2002, arguing that they defaulted in paying central excise duty and were required to pay duty consignment-wise under Rule 8(3A). The appellant cited the decision of the Hon'ble High Court of Gujarat in the case of Indsur Global Ltd., which struck down sub-rule (3A) of Rule 8 as unconstitutional. Additionally, they relied on the tribunal's decision in Praweg Conveyors, where it was held that penalty under Rule 25 cannot be imposed in similar circumstances.

The respondent, on the other hand, relied on the impugned order and the decision of Paras Lubricants Ltd. The Tribunal noted that the decision cited by the respondent was passed before the Hon'ble High Court of Gujarat's decision in Indsur Global Ltd. The Tribunal also considered the decision in Praweg Conveyors, which was based on the High Court's judgment in Indsur Global Ltd. The Tribunal analyzed the facts and legal precedents, emphasizing that the appellant had paid the duty and interest, and the utilization of Cenvat credit was permitted as per the High Court's judgment.

The Tribunal further referenced the judgment in the case of Saurashtra Cement Ltd., highlighting that for penalty under Rule 25, the conditions of Section 11AC of the Central Excise Act must be met, including fraud, collusion, or wilful misstatement. Since these elements were not present in the appellant's case, the penalty under Rule 25 could not be levied. The Tribunal distinguished the facts of the present case from the case of Shivam Pressings, where duty was not paid consignment-wise, unlike the appellant who paid from the Cenvat credit account. Based on the legal interpretations and settled positions, the Tribunal set aside the penalty, allowing the appeal.

Therefore, considering the legal arguments, precedents, and factual circumstances, the Tribunal held that the appellant was not liable for penalty under Rule 25(1)(a) of the Central Excise Rules 2002. The appeal was allowed based on the analysis of relevant legal provisions and judgments.