2022 (5) TMI 906 - AT - Central Excise

Levy of penalty - appellant had paid the duty with interest even prior to issuance of the Show Cause Notice - suppression of facts or not - intent to evade duty or not - HELD THAT - The appellant paid the duty with interest even prior to issuance of Show Cause Notice. If that is so, the authorities had no jurisdiction to initiate proceedings at all and consequently the question of payment of penalty would not arise at all. The Ld.Commissioner(Appeals) s observation that had the department not pointed out the discrepancy the deficit amount would not have been paid, is an inference not supported by allegation in the notice nor any evidence leading to the conclusion that the Appellant had suppressed the facts. In these circumstances the penalty imposed under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002, cannot be sustained and is therefore set aside. The impugned order-in-Appeal is set aside to the extent of confirmation of penalty - Appeal allowed.

Summary

Issues:
1. Eligibility for exemption under Notification No.108/95-CE.
2. Imposition of penalty under Section 11AC of the Central Excise Act, 1944.

Eligibility for Exemption under Notification No.108/95-CE:
The appellant, M/s. Surya Alloys Industries Ltd., cleared 460 'Fish Plate' items to M/s. Era Infra Engg. Ltd. availing exemption under Notification No.108/95-CE dated 28.08.1995. However, during an audit, it was discovered that the appellant did not possess a certificate supporting the exemption claim. Consequently, a show cause cum demand notice was issued, and the appellant agreed to the audit observation, paying the duty involved along with interest before the notice was issued. The appellant contended that since they had already paid the duty and interest, the issuance of the show cause notice was unnecessary. The adjudicating authority, despite the payment, imposed a penalty under Section 11AC of the Central Excise Act, 1944. The Commissioner(Appeals) upheld the penalty, leading the appellant to appeal against the decision.

Imposition of Penalty under Section 11AC of the Central Excise Act, 1944:
The appellant argued that since they had paid the duty and interest before the issuance of the show cause notice, the authorities had no jurisdiction to initiate proceedings or impose a penalty. The Tribunal noted that the authorities lacked jurisdiction to proceed if the duty with interest had been paid before the notice. The Commissioner(Appeals) inferred that the appellant would not have paid the deficit amount if the department had not pointed out the discrepancy, alleging suppression of facts. However, the Tribunal found no evidence supporting the suppression claim. Consequently, the penalty imposed under Section 11AC of the Central Excise Act, 1944, along with Rule 25 of Central Excise Rules, 2002, was deemed unsustainable and set aside. The impugned order-in-appeal was also set aside concerning the confirmation of the penalty.

This judgment highlights the importance of procedural compliance and the jurisdiction of authorities in imposing penalties under the Central Excise Act, emphasizing that penalties cannot be sustained without evidence of suppression of facts.