2010 (5) TMI 273 - AT - Central Excise

Non-speaking order Order in original imposing penalty was upheld by the Commissioner (Appeals). No finding on apecified plea taken by the appellant. Held that- order non speaking order as mere agreement with adjudicating authority s finding on issue beyond perview of allegation in Show Cause Notice. Impugned order liable to be set aside. Matter remanded to the Commissioner.

Summary

Issues:
Imposition of equivalent penalty under Section 11AC of Central Excise Act, 1944 for short payment of duty.

Analysis:
The appellant, a manufacturer of excisable goods, debited an amount in their input account for short payment of central excise duty pertaining to a previous period. The Department issued a show cause notice objecting to the shortfall and imposed differential duty, interest, and equivalent penalty under Section 11AC. The appellant appealed against the penalty imposition. The appellant argued that there was no willful suppression on their part and cited relevant case laws to support their claim. The Department contended that the appellant had not declared certain invoices in their monthly returns, indicating suppression of facts. The appellate authority upheld the penalty, citing willful suppression by the appellant to evade duty payment.

The appellate tribunal found discrepancies in the lower authorities' decisions. The tribunal noted that the adjudicating authority's findings were not alleged in the show cause notice, rendering them invalid. The tribunal criticized the appellate authority for merely agreeing with the adjudicating authority's findings without addressing the appellant's specific pleas. Consequently, the tribunal deemed the appellate authority's order as non-speaking and set it aside. The matter was remanded back to the appellate authority to reconsider the issue, emphasizing the principles of natural justice and the need to evaluate whether the appellant's actions constituted suppression of facts with the intent to evade duty, especially considering that the appellant had voluntarily paid the duty liability.

In conclusion, the tribunal allowed the appeal by remanding the case to the appellate authority for a fresh consideration, emphasizing the importance of following due process and considering all relevant aspects, including the appellant's compliance with discharging the duty liability.