2007 (7) TMI 184 - HC - Central Excise

Penalty imposed by the Comm(A) could not have been set aside by the CESTAT on the sole ground that the duty was paid before issuance of SCN however in OIO there was no finding of suppression of material facts or mis-statement etc. which would have attracted Section 11AC - In view of absence of requirements to attract Section 11AC the order setting aside the penalty u/s 11-AC that was imposed by the Comm (A) does not call for interference revenue appeal dismissed

Summary

Issues:
1. Interpretation of Section 11-AC of the Central Excise Act, 1944 regarding the discretion to award penalty lesser than evaded duty or to exempt the penalty.

Analysis:
The High Court of Bombay heard an appeal under section 35G of the Central Excise Act, 1944, which raised the question of whether there is any discretion under Section 11-AC to award a penalty lesser than the evaded duty or to exempt the penalty. The case involved a show-cause notice issued to the respondent - Assessee, resulting in an Order in Original (OIO) confirming the demand of duty and releasing the seized goods unconditionally. The Commissioner (Appeals) imposed a penalty under section 11-AC and a personal penalty on the Director of the Company. Both parties filed Cross Appeals, which were disposed of by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), setting aside the penalty under section 11-AC due to the duty deposit being made before the show-cause notice was issued.

The High Court referred to previous decisions and held that the facility of payment of duty before the issuance of a show-cause notice based on self-ascertainment is not available to assessees covered by section 11-AC. The penalty imposed by the Commissioner (Appeals) could not have been set aside solely because the duty was paid before the notice. The Court upheld the submission by the Assistant Solicitor General in this regard.

Furthermore, the Assessee raised a cross-objection arguing that the conditions required by section 11-AC, such as intentional evasion of duty through fraud or collusion, were not fulfilled in the present case. The Court noted that the Order in Original did not invoke provisions related to clandestine removal of goods without duty payment or suppression of facts, which are necessary to attract Section 11-AC. As the Commissioner (Appeals) did not provide reasons for reversing the finding of no suppression of material facts, the Court found that the penalty under section 11-AC was not imposable, although for reasons different from those relied upon by CESTAT. Consequently, the appeal was dismissed.