2010 (2) TMI 494 - HC - Central Excise

Penalty - Whether in the facts and circumstances of the case, the Tribunal has committed a substantial error of law in reducing the mandatory penalty imposed on the respondent assessee under Section 11AC of the Central Excise Act, 1944 to the extent of 25% despite having confirmed the duty on account of clandestine removal and evasion of Central Excise duty? Held that - when duty amount is paid before issuance of SCN, the penalty is reduced to 25% of duty amount. If duty amount with interest is not paid in time and even reduced penalty of 25% of duty amount is not paid in time and option is not given to respondent assessee, such option should be given to assessee and period of 30 days would commence from the date of giving such option.

Summary

Issues:
Reduction of penalty under Section 11AC of the Central Excise Act, 1944 despite confirmed duty on clandestine removal and evasion of Central Excise duty.

Analysis:
The Commissioner filed a tax appeal questioning the reduction of mandatory penalty on the respondent despite confirmed duty evasion. The main issue revolved around whether the Tribunal erred in reducing the penalty to 25% of the duty amount. The appellant contended that the respondent did not meet the preconditions for benefitting from the reduced penalty under Section 11AC. The appellant also argued that the Tribunal's decision was not supported by reasons and was mechanically passed without considering the facts of the case. The appellant cited various judgments and legal provisions to support their argument that the penalty should be equivalent to the duty liability.

The Court considered the arguments presented and examined the orders passed by the authorities below. The Court noted that the issues raised by the appellant were previously addressed in other cases. Referring to past judgments, the Court found that the Tribunal's decision to retain the penalty at 25% of the duty amount was justified. The Court relied on established legal principles and previous decisions to support its conclusion that the penalty reduction was appropriate in this case.

The appellant further raised concerns regarding the respondent's compliance with the preconditions for the reduced penalty. The Court addressed these concerns by highlighting that the duty amount, interest, and reduced penalty were not paid within the specified time frame. The Court also emphasized the adjudicating authority's obligation to mention the provisions related to reduced penalty in the order-in-original. The Court referred to a Circular issued by the Central Excise Department, which clarified the mandatory inclusion of these provisions in the adjudicating authority's order.

In conclusion, the Court dismissed the Tax Appeal, subject to certain clarifications regarding the payment of interest and reduced penalty by the respondent. The Court emphasized the importance of providing the respondent with the option to pay the outstanding amounts within a specified period to avail the benefit of the reduced penalty. The Court found the Tribunal's decision to be reasoned and consistent with previous rulings on penalty reductions under Section 11AC.