2018 (7) TMI 403 - AT - Central Excise

Principles of Natural Justice - no proper inquiry made by the Department - Held that - It is clear from the findings of the Commissioner (Appeal) that the Department failed to make any inquiry of actual payment of duty by the manufacturer/producer. Hence, the confiscation of goods and imposition of fine and penalty is not justified - Further, the demand of Service Tax is without examining the records and documents - demand cannot sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Confiscation of seized coal and recovery of Central Excise Duty, Service Tax, and clean energy cess along with interest and penalties.
2. Validity of the demand of Service Tax and penalty.
3. Liability of the appellant for penalty under Rule 27 of the Central Excise Rules, 2002.

Analysis:

1. The case involved the confiscation of 300MT of coal by departmental officers during an inspection, which was provisionally released on payment of a security deposit and bond. A Show Cause Notice was issued proposing confiscation of seized coal and recovery of Central Excise Duty, Service Tax, and clean energy cess. The Adjudicating Authority confirmed the demand, which was remanded by the Commissioner (Appeal) for de novo adjudication. The subsequent orders upheld the confiscation of coal, penalty, and demand of service tax along with interest and penalty. However, the Commissioner (Appeal) observed that the burden of paying duty was wrongfully imposed on the buyers instead of the actual producer/manufacturer, leading to the demand being set aside.

2. The Ld. Counsel for the appellant argued that the appellant had purchased the coal without knowledge of any irregularity, citing a Tribunal decision to support their case. The Department, represented by the Learned D.R., reiterated the findings of the lower authorities. The Commissioner (Appeal) noted the failure of the Department to investigate the actual payment of duty by the manufacturer/producer, leading to the unjustified confiscation of goods and imposition of fines and penalties. The demand for Service Tax was deemed invalid without proper examination of records and documents.

3. The Tribunal referred to a previous decision in the case of G.N. Altech, highlighting that liability for confiscation under Rule 173Q(1)(a) is on the manufacturer until the goods are received by an independent buyer with full consideration towards duty or sale price. Since there was no evidence of the appellant's knowledge about the non-duty paid nature of the goods, the confiscation was set aside, and the appeal was allowed. The Department's reliance on a different case was dismissed as not applicable to the present case. Ultimately, the appeal filed by the appellant was allowed based on the above reasoning.