2018 (8) TMI 397 - AT - Central Excise

Waiver of penalty u/s 11AC of the Central Excise Act, 1944 - Held that - Since extended period of limitation has not been invoked the question of invoking penalty does not arise as extended period and penalty is co-terminus with each other - the decision of the Hon ble Supreme Court in the case of Nizam Sugar Factory 2006 (4) TMI 127 - SUPREME COURT OF INDIA , is squarely applicable to the facts of present case - penalty rightly waived - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Interpretation of VAT remission under the Assam Value Added Tax Act, 2005.
2. Validity of demand of duty along with interest and penalty.
3. Application of penalty under section 11AC of the Central Excise Act, 1944.
4. Invocation of extended period of limitation for penalty.

Analysis:
1. The case involved the interpretation of VAT remission under the Assam Value Added Tax Act, 2005, availed by the assessee, a manufacturer of excisable goods. The assessee retained 99% of the VAT amount collected from buyers and deposited only 1% with the State Government. A show cause notice was issued proposing a demand of duty, interest, and penalty. The issue focused on the second show cause notice and the adjudicating authority's decision confirming the demand.

2. The Revenue contended that the assessee intentionally excluded the disputed VAT amount to evade duty payment, challenging the setting aside of the penalty by the Commissioner (Appeals). The Tribunal examined the records and cited the decision in the case of Nizam Sugar Factory to support the argument that penalty and the extended period of limitation are co-terminus. Consequently, the Tribunal upheld the Commissioner (Appeals)' decision on the demand and interest, dismissing the Revenue's appeal.

3. The Tribunal's decision was based on the applicability of legal precedents such as the Nizam Sugar Factory case and the Dee Kay Exports case. By aligning with these decisions, the Tribunal found no grounds to interfere with the Commissioner (Appeals)' order. The dismissal of the appeal affirmed the decision to sustain the Commissioner (Appeals)' ruling on the penalty imposed on the assessee.

In conclusion, the judgment addressed the interpretation of VAT remission, the validity of the demand of duty, interest, and penalty, as well as the application of penalty under the Central Excise Act, 1944. The Tribunal's decision was influenced by legal precedents and upheld the Commissioner (Appeals)' order, ultimately dismissing the appeal filed by the appellant.