2018 (8) TMI 1217 - AT - Central Excise

Valuation - inclusion of value of the CFCs and gum tapes - finalization of provisional assessments - Held that - There is no denial that there was short payment on this account while there was excess payment overall during the relevant period. Time Limitation - Held that - The appellant has not disclosed full facts and had suppressed the value of these two items in the data provided to the department. However, the appellant has already paid duty in excess of the proposed demand. Therefore, the demand needs to be set off against the excess duty paid, as done by the lower authority. Penalty u/s 11AC - Held that - The penalty which can be imposed is equal to the amount of duty not paid or short paid or erroneously refunded. In this case, the net effect of the finalization of the assessment after taking into consideration the value of CFCs and gum tapes would be that the appellant had still paid duty in excess. Therefore, there is no scope for imposing penalty under Sec.11AC because the net differential duty would be negative. The demand is confirmed - penalty set aside - appeal allowed in part.

Summary

Issues:
- Whether the appellant is liable to pay the demanded differential duty, interest, and penalty?
- Whether the appellant deliberately suppressed facts leading to short payment of duty?
- Whether the penalty imposed under Sec.11AC of the Central Excise Act is justified?
- Whether the demand for duty needs to be set off against the excess duty paid by the appellant?

Analysis:
1. Liability for Differential Duty, Interest, and Penalty:
The appellant, a partnership firm, manufactured "Printed Slides" on a job work basis for specific companies and cleared goods on provisional duty payment due to incomplete information. Subsequently, discrepancies were found in the assessment, leading to a demand for differential duty. The appellant argued against the demand, stating that the value of certain materials was not included in the assessment data. The department contended that the appellant suppressed facts, resulting in short payment of duty. However, it was acknowledged that the appellant had paid duty in excess during the relevant period. The Tribunal agreed that the demand should be set off against the excess duty paid, and the penalty under Sec.11AC was deemed unnecessary as the net effect of the assessment showed an excess payment of duty.

2. Suppression of Facts and Penalty Imposition:
The appellant raised concerns about the penalty imposed under Sec.11AC, arguing that there was no deliberate defiance of law or dishonesty on their part. They claimed that there was no intention to evade duty and that the department was aware of the alleged short payment since a specific communication in 2008. The department argued that the appellant failed to disclose complete data during provisional assessments, leading to the suppression of facts. However, considering that the appellant had paid duty in excess overall, the Tribunal concluded that no penalty should be imposed under Sec.11AC as the net differential duty was negative.

3. Set Off of Demand Against Excess Duty Paid:
The Tribunal examined the records and confirmed that the appellant did not include the value of certain materials in the assessment data during the relevant period. Despite this, the appellant had paid duty in excess of the proposed demand. Therefore, the demand for duty was set off against the excess duty paid by the appellant. The penalty imposed by the original authority and upheld by the first appellate authority was set aside, as the net effect of the assessment showed an overall excess payment of duty.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the penalty under Sec.11AC and confirming the demand for duty while directing the set off against the excess duty paid.