2018 (12) TMI 775 - AT - Central Excise

Penalty u/s 11AC of CEA - Clandestine removal - entire amount of differential duty alongwith interest paid on their own before intervention of the department - Held that - Such reversal of credit on the basis of their own ascertainment and payment of interest involved thereon, before the issuance of relevant Show Cause Notice, is in agreement with the provisions of sub-section (1)(b)(i) of Section 11A of the Central Excise Act, 1944 - appeal dismissed - decided against Revenue.

Summary

Issues:
- Alleged removal of finished products without payment of central excise duty
- Confirmation of demand, interest, and penalty by Adjudicating Authority
- Appeal by Revenue against penalty set aside by first appellate authority
- Respondent assessee's submission of paying the differential duty before show cause notice issuance
- Consideration of Chartered Accountant's Certificate by lower authority
- Eligibility for benefit under Section 11A of the Central Excise Act, 1944
- Imposition of penalty under Section 11AC of the Central Excise Act, 1944

Alleged removal of finished products without payment of central excise duty:
The case involved the appellants being accused of removing finished products from the factory without paying central excise duty, leading to the issuance of a Show Cause Notice. The Adjudicating Authority confirmed the demand for duty, interest, and imposed a penalty, which was later set aside by the first appellate authority.

Respondent assessee's submission of paying the differential duty:
The respondent assessee argued that they had paid the entire amount of the differential duty along with interest before the department intervened. They consistently paid the differential duty and interest on their own and disclosed the same in their ER-I Returns. The Chartered Accountant's Certificate was highlighted to demonstrate the judicious nature of the lower authority in appreciating the case.

Eligibility for benefit under Section 11A of the Central Excise Act, 1944:
The first appellate authority considered the provisions of Section 11A, emphasizing that the appellant qualified for the benefit of sub-section (2) of Section 11A. The appellant had paid the central excise duty pertaining to price escalation before the Show Cause Notice was served, as evidenced by supplementary invoices and relevant ER-I Returns. The authority concluded that the appellant was eligible for the benefit under Section 11A, and no penalty should be imposed.

Imposition of penalty under Section 11AC of the Central Excise Act, 1944:
The issue of imposing a penalty under Section 11AC was raised by the Revenue, arguing that the penalty should not have been set aside by the first appellate authority. However, the Tribunal upheld the decision to set aside the penalty, citing that the statute explicitly prohibits the imposition of a penalty when the assessee is eligible for the benefit under sub-section (2) of Section 11A. Therefore, the penalty was deemed not maintainable on merit, and the appeal was allowed with consequential relief.