2017 (7) TMI 842 - AT - Central Excise

Penalties u/s 11AC of CEA, 1944 - SSI exemption - valuation - Held that - the claim of appellant that it was bonafide mistake for non inclusion of the ready mix concrete for claim SSI exemption is on a weak footing, as there is no evidence in any form of correspondence nor any letter written by the appellant to the Department - in absence of any evidence to substantiate that the appellant had entertained a bonafide belief, appeal fails and the impugned order needs to be upheld - appeal dismissed - decided against appellant.

Summary

Issues involved: Appeal against penalties imposed under Section 11AC of the Central Excise Act, 1944 for non-inclusion of turnover of ready mix concrete in availing SSI exemption benefit.

Analysis:
1. Issue of SSI exemption benefit: The appellant claimed SSI exemption under Notification No. 01/2003-CE for goods manufactured, including ready mix concrete. The audit revealed non-inclusion of ready mix concrete turnover for 2006-07, 2007-08, 2008-09, leading to exceeding the threshold limit. The appellant contended a bona fide belief in the exemption due to the nature of the product. However, the tribunal found no evidence of correspondence supporting the claim, and the First Appellate Authority's findings highlighted the lack of basis for the appellant's contention. The tribunal concurred with the Authority's decision, emphasizing the calculated risk taken by the appellant in not disclosing the value of exempted goods, leading to the conclusion that the non-payment was due to suppression of facts and intention to evade duty, justifying the penalty under Section 11AC.

2. Penalty under Section 11AC: The tribunal upheld the penalty imposed under Section 11AC, amounting to the Central Excise duty involved. It noted the appellant's history of substantial turnover, prior benefit availed under SSI exemption, and deliberate non-inclusion of ready mix concrete turnover. The tribunal found the appellant's argument of a bona fide mistake unsubstantiated, emphasizing the failure to disclose details in returns or to the department until detection. The tribunal held that the non-payment was not a mere mistake but a deliberate act of evasion, justifying the penalty equal to the duty amount. The absence of evidence supporting the appellant's claim of a bona fide belief led to the rejection of the appeal and upholding of the impugned order.

3. Conclusion: The tribunal, based on the lack of evidence supporting a bona fide belief and the deliberate non-disclosure of relevant facts, rejected the appeal against the penalties imposed under Section 11AC. The decision highlighted the importance of transparency in compliance with Central Excise laws and the consequences of non-disclosure or suppression of relevant information in availing exemptions and benefits.