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2010 (2) TMI 401 - AT - Central ExciseClandestine removal- a show cause notice was issued to the respondent for confirming the duty demand and also imposition of penalty under Section 11AC for clandestine removal of the finished goods without payment of duty. The Assistant Commissioner vide order-in-original dated 19-2-07 confirmed the duty demand and ordered appropriation of the amount already paid towards the duty demand and beside this imposed penalty of Rs. 1,34,986/- on the respondent under Section 11AC. The Commissioner (Appeals), however, on appeal by the respondent vide order-in-appeal dated 21-2-08 set aside the order of penalty on the ground that there was no evidence that the goods found short had been clandestinely cleared and also that the entire duty had been paid prior to the issue of show cause notice. It is against this order that the present appeal has been filed by the Revenue. Held that- finding that evidence not enough to hold clandestine removal, not correct. Impugned order set aside.
Issues: Clandestine removal of goods without payment of duty, imposition of penalty under Section 11AC, waiver of penalty due to prior duty payment.
Analysis: 1. Clandestine Removal of Goods: The case involved the detection of a shortage of 47.800 MT of M.S. Bars during a physical stock taking at the factory of the respondents. The authorized signatory admitted to the removal of the goods without payment of duty and without issuing invoices. The Tribunal noted that the shortage was not disputed, and the statement of the authorized representative was not retracted. Additionally, considering that M.S. Bars are evasion-prone items, the Tribunal found that there was sufficient evidence to conclude that the goods were removed clandestinely without payment of duty. 2. Imposition of Penalty under Section 11AC: The Assistant Commissioner had confirmed the duty demand and imposed a penalty of Rs. 1,34,986 under Section 11AC for clandestine removal of goods. The Commissioner (Appeals) set aside the penalty, citing lack of evidence for clandestine clearance and the prior payment of duty before the show cause notice. However, the Tribunal disagreed with this reasoning. It held that the mere payment of duty before the notice does not exempt the assessee from penalty under Section 11AC. Citing a judgment of the Hon'ble Rajasthan High Court, the Tribunal emphasized that if the elements for penalty under Section 11AC are present, the penalty should be imposed. 3. Waiver of Penalty due to Prior Duty Payment: The Tribunal rejected the argument that the penalty under Section 11AC should be waived because the duty had been paid before the issuance of the show cause notice. It emphasized that in cases of clandestine removal, the duty payment before notice does not absolve the assessee from penalty under Section 11AC. Referring to relevant legal precedents, the Tribunal reinstated the penalty imposed by the Assistant Commissioner, stating that the provisions of Section 11AC would apply in situations of clandestine removal, and the penalty should not have been waived by the Commissioner (Appeals). In conclusion, the Tribunal allowed the Revenue's appeal, setting aside the order of penalty waiver by the Commissioner (Appeals) and restoring the order-in-original of the Assistant Commissioner, thereby upholding the imposition of penalty under Section 11AC for the clandestine removal of goods without payment of duty.
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