2017 (11) TMI 1454 - AT - Central Excise

Valuation - short payment of duty - case of Revenue is that the duty payable was calculated on the assessable value of excisable goods on actual sales only and duty payable on stock transfers to their other depots was not calculated and paid - Held that - the appellant voluntarily paid the duty along with interest before the issue of SCN - the appellant has disclosed all these facts in their ER 3 returns and the department has scrutinized the ER 3 returns and then alleged that there is suppression of facts on the part of the appellant - also, the appellant had a doubt as to whether the goods transferred to the depot are liable to duty or not. The department has not brought any evidence on record to prove suppression of facts on the part of the appellant - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against rejection of appeal by Commissioner (A) - Short payment of duty on stock transfers - Delay in filing returns - Penalty under Central Excise Act, 1944 - Suppression of facts - Applicability of section 11A (2) of the Act.

Analysis:

1. Short Payment of Duty on Stock Transfers:
During scrutiny, it was observed that duty payable on stock transfers to other depots was not calculated and paid. The appellant had belatedly filed returns and used the wrong form for filing, resulting in short payment of duty recoverable with interest under Section 11A and 11AA of the Central Excise Act, 1944. The appellant was also found liable for penalty under Section 11AC (a) and Rule 27 of the Central Excise Rules, 2002.

2. Delay in Filing Returns and Penalty Imposition:
Show cause notices were issued demanding excise duty, interest, and penalty. The appellant responded, appeared for a hearing, but the lower authority confirmed the demand, interest, and penalty. The appellant appealed, arguing against the sustainability of the order and lack of intention to evade payment. The appellant contended that duty and interest were paid voluntarily before the show cause notice, and there was no suppression of facts. The appellant sought clarification from the department on the duty liability for transferred goods but did not receive a response.

3. Suppression of Facts and Applicability of Section 11A (2) of the Act:
The appellant maintained that all relevant facts were disclosed in their returns, and there was no intention to evade payment. The department alleged suppression based on scrutiny of returns but failed to provide evidence. The appellant's doubt regarding duty liability on transferred goods was considered. The Tribunal found the penalty imposition unsustainable in law, citing precedents and the absence of evidence of intentional suppression. The impugned order was set aside, allowing the appeal with consequential relief.

This detailed analysis covers the issues of short payment of duty on stock transfers, delay in filing returns, penalty imposition, suppression of facts, and the applicability of Section 11A (2) of the Act, as addressed in the judgment by the Appellate Tribunal CESTAT BANGALORE.