2018 (8) TMI 1579 - AT - Central Excise

Benefit of cum duty - benefit of reduced penalty, as provided in the proviso to Section 11AC of the Central Excise Act, 1944 - Held that - For benefit of cum duty, the said request is reasonable and the appellant has to be given a chance to establish their plea of cum duty. The matter, therefore, requires to be remanded to the Adjudicating Authority for the limited purpose of requantification, taking into consideration the plea of the appellant with regard to cum duty benefit - matter on remand. Penalty - Held that - The appellant has not been informed that he has option to pay reduced penalty if the duty demand along with interest is paid within one month of the passing of the order in original - this matter also requires reconsideration. Penalty imposed on the Managing Director - Held that - The Managing Director was also involved in the clearance of paints in the guise of primers - penalty imposed but quantum reduced. Appeal allowed in part - part matter on remand.

Summary

Issues:
1. Restoration of appeal against order of dismissal for non-prosecution.
2. Benefit of cum duty not granted to the appellant.
3. Reduced penalty benefit not provided as per proviso to Section 11AC.
4. Penalty imposed on Managing Director.

Issue 1: Restoration of Appeal
The appellant filed applications for restoration of appeal against the Tribunal's order dismissing the appeals for non-prosecution. The learned Consultant for the appellant submitted that a request for adjournment was filed but not brought to the Bench's notice, resulting in the dismissal. The appellant was unable to appear in court due to illness. After hearing both sides, the Member (Judicial) decided to restore the appeal to the Tribunal's files, allowing the applications for restoration.

Issue 2: Benefit of Cum Duty
The appellant contended that they were not granted the benefit of cum duty by the authorities below. The learned Consultant argued for remanding the matter to the Adjudicating Authority to grant cum duty benefit and requantify the issue. The Member (Judicial) found the request reasonable and ordered the remand for the limited purpose of requantification, providing the appellant with an opportunity to present evidence in support of their plea for cum duty benefit.

Issue 3: Reduced Penalty Benefit
The appellant also raised the issue of not being given the benefit of reduced penalty as per the proviso to Section 11AC. The Member (Judicial) noted that the appellant had not been informed of the option to pay reduced penalty within a specified period, as observed in a previous case. Therefore, the issue of reduced penalty was remanded to the Adjudicating Authority for consideration along with the cum duty benefit, ensuring that the appellant receives the benefit of reduced penalty if applicable.

Issue 4: Penalty on Managing Director
Regarding the penalty imposed on the Managing Director for involvement in the clearance of paints in violation of the Central Excise Act, the Member (Judicial) found the penalty of ?2 lakhs to be excessive. The penalty was reduced to ?25,000. The appeals were partly allowed and partly remanded with consequential reliefs, if any, in the mentioned terms.

In conclusion, the judgment addressed the restoration of appeal, the grant of cum duty benefit, the provision of reduced penalty benefit, and the penalty imposed on the Managing Director. The decision provided detailed reasoning for each issue, ensuring that the appellant received a fair consideration of their pleas and appropriate relief where deemed necessary.