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2009 (6) TMI 271 - AT - Central ExciseQuantum of penalty and confiscation - Central Excise officers visited the respondents factory premises and found one parallel challan book. It was also found that challans were issued for clearance of the goods without payment of duty - Thus, it is a case of clandestine removal of goods. - Hon ble Delhi High Court in the case of K.P. Pouches (P) Ltd. v. UOI and Anrs. 2008 - TMI - 30328 - HIGH COURT OF DELHI held that in terms of 1st proviso to Section 11AC where entire duty is paid before issuance of show cause notice, the adjudicating authority should specifically give an option to the party to pay 25% of the duty as penalty within 30 days. In the present case, it is clearly evident that the goods are cleared clandestinely and, therefore, penalty under Section 11AC of the Act is warranted. It is noted that the respondents have already deposited the duty along with penalty of 25% of duty amount as penalty. In view of the decision of the Hon ble Delhi High Court in the case of K.P. Pouches (P) Ltd. penalty of 25% of duty is warranted. Raw materials confiscated under rule 25 of Central Excise Rules, 2002 - Regarding confiscation of the raw material the learned Advocate submits that they have not availed any benefit on the seized raw material - We agree with the learned Advocate that Rule 25, under which the semi-finished processed goods has been confiscated is applicable only to finished excisable goods. As such, Hence, Commissioner (Appeals) rightly set aside confiscation of goods.
Issues:
1. Clandestine removal of goods involving duty evasion. 2. Imposition of penalty under Section 11AC of the Central Excise Act, 1944. 3. Confiscation of excess raw material and imposition of redemption fine. Analysis: Issue 1: Clandestine removal of goods involving duty evasion The case involved the respondents being engaged in dyeing Acrylic Yarn classifiable under Chapter 55 of the Central Excise Tariff Act, 1985. Central Excise officers found a parallel challan book during a visit to the factory premises, indicating clearance of goods without duty payment amounting to Rs. 79,654. Additionally, an excess quantity of 3550 kgs of Grey Acrylic Yarn was also discovered. The respondents promptly deposited the duty amount along with a penalty of 25% upon detection of the clandestine removal. The original authority confirmed the duty demand, imposed penalties under Section 11AC of the Central Excise Act, 1944, and confiscated the excess raw material while imposing a redemption fine of Rs. 25,000. Issue 2: Imposition of penalty under Section 11AC of the Central Excise Act, 1944 Upon review, the Tribunal found that the goods were indeed cleared clandestinely based on parallel challans without duty payment, constituting a case of duty evasion. Referring to Section 11AC, which provides for penalties in cases of fraud or suppression of facts to evade duty payment, the Tribunal noted that penalties should be equal to the duty evaded. Citing a relevant High Court case, it was established that when the entire duty is paid before a show cause notice, the party should be given an option to pay 25% of the duty as a penalty within 30 days. In this case, since the respondents had already paid the duty and a 25% penalty, the Tribunal upheld the penalty imposition in line with legal precedents. Issue 3: Confiscation of excess raw material and imposition of redemption fine The Tribunal considered arguments regarding the confiscation of raw material, with the learned Advocate contending that no benefit was derived from the seized raw material. Referring to previous Tribunal decisions, it was highlighted that raw material confiscated under Rule 25 of the Central Excise Rules, 2002 could be set aside. The Revenue, however, argued that Rule 25 applied to all excisable goods. Ultimately, the Tribunal agreed with the Advocate's position, setting aside the confiscation of goods and the consequent redemption fine, in line with past judgments. In conclusion, the Tribunal modified the Commissioner (Appeals) order, upholding the penalty of 25% of duty along with interest, while setting aside the confiscation of goods. The appeal filed by the Revenue was disposed of accordingly.
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