2010 (3) TMI 419 - HC - Central Excise

Penalty- Whether in the facts and circumstances of the case, the Tribunal is right in reducing the mandatory penalty u/s 11AC of the Central Excise Act, 1944? Held that- the law relating to the doctrine of res judicata was squarely attracted as the order passed by the Commissioner (Appeals) having become final and conclusive. It was open for the Respondent to challenge the said order, however, they did not challenge the same as such they have to suffer consequences. In the result, the question of law is answered in favour of the Revenue and against the Respondent-Assessee.

Summary

Issues:
Reduction of penalty under Section 11(AC) of the Central Excise Act, 1944.

Analysis:
The appeal in question involved the substantial question of law regarding the reduction of the mandatory penalty under Section 11(AC) of the Central Excise Act, 1944. The factual background revealed that a show cause notice was issued against the Respondent-Assessee, leading to an order-in-original dated 13-3-2003. The Commissioner (Appeals) subsequently applied the provisions of Section 11(AC) and reduced the penalty, a decision that was challenged by the Revenue before the Tribunal. The Tribunal upheld the reduction in penalty under Section 11(AC) based on the finding that there was no deliberate intention to evade excise duty due to a bona fide impression held by the unit. The Revenue, dissatisfied with this decision, contended that the penalty should not have been reduced under Section 11(AC).

The learned counsel for the Revenue relied on judgments by the Apex Court to support their argument, emphasizing that the findings of the Commissioner (Appeals) were not challenged by the Respondent-Assessee before the Tribunal. The counsel argued that as per legal precedent, if specific findings of fact are not challenged in the grounds of appeal, contrary submissions cannot be entertained by the appellate Court. Furthermore, the counsel contended that the adverse findings against the Respondent had become final and conclusive, necessitating a ruling in favor of the Revenue.

On the other hand, the counsel for the Respondent argued that the show cause notice itself was flawed and illegal. They highlighted the Tribunal's finding that there was no deliberate intention to evade duty due to a genuine misunderstanding on the part of the Respondent. The Respondent's counsel asserted that the provisions of Section 11(AC) should not have been invoked based on this finding, claiming that the Respondent did not fall under the purview of the legal principles established by the Apex Court.

After considering the arguments presented by both parties, the Court accepted the contentions put forth by the Revenue. The Court noted that while the initial finding by the Commissioner (Appeals) supported the Respondent's position, a contradictory finding was also present, which should have been challenged by the Respondent in a higher forum. Since the Respondent failed to challenge this contradictory finding, the Tribunal could not set aside the order of the Commissioner (Appeals), which had become final and conclusive against the Respondent. The Court invoked the doctrine of res judicata, emphasizing that the Respondent had the opportunity to challenge the order but did not do so, resulting in adverse consequences for the Respondent.

In conclusion, the Court ruled in favor of the Revenue, holding that the question of law was answered in favor of the Revenue and against the Respondent-Assessee. The appeal was accordingly disposed of with no order as to costs.