2018 (12) TMI 88 - AT - Central Excise

Imposition of penalty u/s 11AC - appellant did not discharge its Central Excise duty liability due to bona fide mistake - Held that - Payment of service tax has got nothing to do with the issue of nonpayment of Excise duty. Inasmuch as the entire demand was raised on the basis of records maintained by the assessee, the Adjudicating Authority has rightly concurred with the assessee on the ground of absence of any mala fide, in which case he should not have imposed any penalty upon them. The Excise duty payment alongwith interest upheld - penalty set aside - appeal allowed in part.

Summary

Issues:
Request for adjournment, imposition of penalty under Section 11AC, unintentional mistake in payment of Excise duty, payment of service tax on GTA and Renting of Immovable Property.

Analysis:

Request for Adjournment: The Appellate Tribunal rejected the request for adjournment and proceeded to decide the appeal due to a short issue involved. The Tribunal heard the learned A.R. for Revenue and reviewed the impugned order.

Imposition of Penalty under Section 11AC: The appellant, engaged in the manufacture of exercise books and note books, faced a demand of Excise duty amounting to ?60,34,839 for the period from 01/03/2011 to 07/03/2014. The appellant paid the duty along with interest even before the issuance of the show cause notice. Proceedings were initiated for imposing a penalty under Section 11AC. The Adjudicating Authority acknowledged the appellant's unintentional mistake in not paying the duty, as they believed the products attracted VAT. The Authority noted that the appellant had recorded all transactions in their records, including balance sheets. However, the Authority also observed that since the appellant paid service tax on GTA and Renting of Immovable Property, it could not be concluded that the non-payment of Excise duty was a bona fide mistake.

Unintentional Mistake in Payment of Excise Duty: The Adjudicating Authority agreed that there was no mala fide intention on the part of the appellant regarding the non-payment of Excise duty. The Authority noted the appellant's prompt payment of duty dues along with interest and the initiation of duty payments on further clearances after obtaining Central Excise registration. Despite acknowledging the unintentional mistake, the Authority imposed a penalty under Section 11AC based on the appellant's payment of service tax on other services.

Payment of Service Tax on GTA and Renting of Immovable Property: The Tribunal found the Adjudicating Authority's reasoning contradictory. While the Authority agreed with the appellant's assertion of unintentional mistake, it also considered the payment of service tax on other services as a basis for not accepting the appellant's plea. The Tribunal clarified that the payment of service tax was irrelevant to the issue of Excise duty payment. Since the demand was based on the appellant's records and no mala fide intent was established, the Tribunal set aside the penalty imposition and upheld the Excise duty payment along with interest.

In conclusion, the Tribunal allowed the appeal to the extent of setting aside the penalty imposed on the appellant, emphasizing the absence of mala fide intent in the non-payment of Excise duty despite the contradictory observations of the Adjudicating Authority.