2010 (3) TMI 383 - HC - Central Excise

Penalty- Evasion, intention to evade- This appeal was admitted basically to consider the question of penalty levied under Section 11AC of the Central Excise Act, 1944.Tribunal allow the appeal based on law at relevant time that when duty liability paid before issuance of SCN, penalty is not leviable. Held that- the assessee within its net if the circumstances mentioned therein are found to exist. The order-in-original had brought the assessee-respondent herein within the net of Section 11AC. Necessary to set aside impugned order and restore appeal to file of tribunal with directions to decide all contentions.

Summary

Issues:
1. Penalty levied under Section 11AC of the Central Excise Act, 1944.
2. Imposition of monetary penalty under Section 11AC.
3. Appeal against adverse findings including non-payment of duty with intention to evade.
4. Appellant's payment of liability before show cause notice issuance.
5. Necessity of remanding the matter to the Tribunal for further consideration.

Analysis:

Issue 1: Penalty under Section 11AC
The appeal was admitted to consider the penalty imposed under Section 11AC of the Central Excise Act, 1944. The order-in-original confirmed all allegations, including the suppression of vital facts. The appellant argued that recent judgments by the Apex Court established precedents on penalty imposition under Section 11AC, favoring the Revenue. The respondent succeeded before the Tribunal based on the payment of liability before the show cause notice, making the penalty under Section 11AC not leviable.

Issue 2: Imposition of Monetary Penalty
The appellant contended that the impugned order should be quashed based on recent judgments favoring the Revenue. However, the respondent argued that the Tribunal's decision in their favor on one ground justified not challenging the order further. Considering the changed legal scenario, the respondent suggested remanding the matter to the Tribunal to address all contentions raised in the memo of appeal.

Issue 3: Appeal Against Adverse Findings
The Tribunal's decision in favor of the respondent was based on the payment of liability before the show cause notice issuance. The respondent did not challenge the order further, leading to the suggestion of remanding the matter to the Tribunal for a comprehensive review of all contentions.

Issue 4: Appellant's Payment Before Notice
The Tribunal's decision in favor of the respondent was primarily due to the payment of liability before the issuance of the show cause notice. The respondent's success on this ground led to the proposal of remanding the matter for a more detailed consideration of all raised contentions.

Issue 5: Remanding Matter to Tribunal
To address the anomaly in the specific finding regarding the appellant's liability under Section 11AC, the High Court quashed the impugned order and remanded the matter to the Tribunal for a re-hearing. The Tribunal was directed to consider and decide all contentions raised by the parties in the memo of appeal, ensuring a reasoned order following principles of natural justice within four months.

In conclusion, the High Court's judgment focused on the penalty levied under Section 11AC, the recent legal precedents, the Tribunal's decision favoring the respondent, and the necessity of remanding the matter for a comprehensive review of all contentions raised by the parties.