2017 (12) TMI 1370 - AT - Central Excise

Extended period of limitation - penalty - Clandestine removal - Valuation u/s 4A of CEA - Held that - The authorities below have upheld and appropriate duty paid by resorting to invocation of the extended time limit provided in Section 11A. Whenever demand is confirmed on the basis of such allegations, the penalty payable under Section 11AC becomes automatically payable - reliance placed in the case of M/s Rajasthan Spinning and Weaving Mills Ltd. 2009 (5) TMI 15 - SUPREME COURT OF INDIA , where it was held that Once the conditions specified u/s 11AC of the Central Excise Act are satisfied, penalty becomes mandatory and there is no scope of discretionary power - the duty demand with interest as well as the penalty imposed on the assessee are upheld. Penalty u/r 26 on Sh Sanjay Bhatia, Director of the assessee - Held that - penalty imposed on Sh Sanjay Bhatia, Director of the assessee under Rule 26 of the Central Excise Rules, 2002 is not justified and is set-aside. Appeal allowed in part.

Summary

Issues involved:
Allegations of clandestine clearance of finished products, valuation of goods under Section 4A of the Act, duty demand, penalty imposition, confirmation of duty demand, extended time limit under Section 11A, penalty under Section 11AC, penalty on the Director under Rule 26 of the Central Excise Rules, 2002.

Analysis:

The appeals were filed against Order-in-Appeal Nos.119-120/2012 dated 06.09.2012 concerning the appellant engaged in manufacturing various products falling under different sub-headings of the Central Excise Tariff. Central Excise Officers found a discrepancy in the physical stock of final products compared to the RG-1 register during a visit on 11.02.2009. The department contended that the products fell under assessment under Section 4A of the Central Excise Act, resulting in a duty demand of Rs. 2,55,149. The appellant paid the duty, including the alleged shortage amounting to Rs. 2,82,573.

The original adjudicating authority confirmed the duty demand, ordered interest payment, and imposed a penalty equal to the duty amount. Additionally, a penalty of Rs. 10,000 was imposed on the Director. The appellant and the Director appealed against these decisions.

During the hearing, the appellant did not contest the duty demand, and the advocate requested setting aside the penalties since the duty had been paid. The department justified the penalties citing clandestine removal allegations, stating that penalties are automatically leviable under Section 11AC in such cases.

The Tribunal noted that the appellant did not contest the allegations of clandestine clearance and valuation issues. The duty had been paid, and the demands were confirmed based on the extended time limit under Section 11A. Citing a Supreme Court case, the Tribunal upheld the duty demand, interest, and penalty under Section 11AC.

However, the Tribunal found the penalty imposed on the Director unjustified under Rule 26 of the Central Excise Rules, 2002, and set it aside. Consequently, the appeals were partially allowed, modifying the impugned order.

In conclusion, the Tribunal upheld the duty demand, interest, and penalty under Section 11AC but set aside the penalty imposed on the Director. The decision was pronounced on 14.11.2017.