2012 (10) TMI 167 - AT - Central Excise

Stay for waiver of pre-deposit of penalty - Held that - The appellant had discharged duty liability on clearances made during the period January 2008 to March 2008, through RG23A Part II i.e. CENVAT account. Also that the appellant had enough balance in RG23A Part II to discharge duty liability. And that debiting RG23A Part II was no good as discharge of duty, but there is no default of payment of duty, which is found in this case as the appellant had not paid duty liability for the month of November 2007. The appellant has rectified the error by debiting the amount through PLA towards discharge of duty liability. The error of debiting the CENVAT account during the period January 2008 to March 2008 as mere technical lapse and reduce the penalty imposed by the adjudicating authority to Rs.5,000/- under Rule 25 of Central Excise Rules, 2002. Thus the penalty of Rs.60,000/- under Rule 25 of Central Excise Rules, 2002, needs to be restored as the findings reached are correct and there is no appeal filed by the assessee against such an order.

Summary

Issues: Stay petition for waiver of pre-deposit of penalty under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944; Appeal against enhancement of penalty by the first appellate authority; Application of precedent in a similar case.

In this judgment by the Appellate Tribunal CESTAT, Ahmedabad, the issue revolved around a Stay Petition filed for the waiver of pre-deposit of a penalty imposed by the first appellate authority under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of Central Excise Act, 1944. The Tribunal noted that the appeal itself could be disposed of at that stage after considering the Stay Petition. The appellant had defaulted in payments during certain months but subsequently made payments through the CENVAT account, which was objected to by the Department. The adjudicating authority imposed a penalty, which was then enhanced by the first appellate authority. The appellant cited a previous Tribunal decision as precedent in their case.

Upon careful consideration of submissions and records, the Tribunal found that the appellant had discharged duty liability through the CENVAT account for a specific period but had rectified an error by debiting the amount through PLA for another period. The Tribunal considered the error as a technical lapse and reduced the penalty imposed by the adjudicating authority. Following this decision, the Tribunal concluded that the penalty imposed by the adjudicating authority needed to be restored as the findings were correct and no appeal had been filed by the assessee against that order. Therefore, the impugned order of the first appellate authority was set aside, and the order of the adjudicating authority regarding the penalty under Rule 25 of Central Excise Rules, 2002, was restored.

In summary, the Tribunal disposed of the appeal by setting aside the first appellate authority's order and restoring the penalty imposed by the adjudicating authority under Rule 25 of Central Excise Rules, 2002, based on the correct findings and lack of appeal by the assessee against the original order.