2017 (9) TMI 339 - AT - Central Excise

Penalty - rule 25 or 26 or 27 of Central Excise Rules, 2002 - default in payment of duty - Held that - A consistent default in payment of duty by the respondent is noticeable from record. Added to this, it was also attempted to clear the goods without making entry of clearance paying duty in the statutory records. Mere discharging of duty at a subsequent date shall not be consolation to the exchequer that it discharged duty. The delay in discharge of duty is a deprivation to the state to use of such revenue for public welfare. Penalty deters violation of law - It may be appreciated that hardship and loss of benefit to an assessee is not relevant consideration in fiscal jurisprudence. Ld. Adjudicating authority should have appreciated the conduct of the respondent from show-cause notice that it was a wilful defaulter in paying duty. But, she failed to justify non-application of Rule 25, 26 of the Central Excise Rules, 2002 as invoked in the show-cause notice. It may be stated that power is vested with the authority to carry out the mandate of law - matter is remanded to the adjudicating authority for re-adjudication - appeal allowed by way of remand,

Issues:
1. Application of Rule 25 of Central Excise Rules, 2002 for penalty imposition.
2. Consideration of penalty under Rule 27 instead of Rule 25.
3. Default in payment of duty and attempted clearance of goods without proper documentation.
4. Justification for penalty imposition and non-application of relevant rules.
5. Interpretation of legal provisions and precedent cases for penalty imposition.

Analysis:

Issue 1: Application of Rule 25 for penalty imposition
The judgment addresses the contention by the Revenue that the appellant was a regular defaulter in discharging duty liability and had engaged in mischievous conduct by clearing goods without proper documentation. The adjudicating authority was criticized for being lenient in imposing a penalty of ?5000 without considering the provisions of Rule 25 of Central Excise Rules, 2002 and Section 11AC of the Central Excise Act, 1944. The judgment highlights that the authority's decision was flawed as it did not adequately examine the gravity of the matter and misapplied legal principles.

Issue 2: Consideration of penalty under Rule 27
The Respondent argued that the penalty was imposed under Rule 27 instead of Rule 25 or Rule 26 of the Central Excise Rules, 2002. The judgment notes that the authority below did not apply Rule 25 and held that Rule 26 was also not applicable. This discrepancy in the application of penalty rules was a point of contention between the parties, leading to the need for a thorough examination of the legal provisions by the adjudicating authority.

Issue 3: Default in payment of duty and attempted clearance of goods
The judgment highlights the consistent default in duty payment by the respondent and the attempt to clear goods without proper entry or payment of duty in statutory records. It emphasizes that merely discharging duty at a later date does not absolve the defaulter from penalty, as it deprives the state of revenue for public welfare. The delay in duty payment was considered a violation of the law, warranting penalty imposition to deter such behavior.

Issue 4: Justification for penalty imposition and non-application of rules
The judgment criticizes the adjudicating authority for not appreciating the law related to penalties and the specific provisions of Rule 25. It points out that the respondent did not willfully discharge the duty, emphasizing the need for a proper examination of facts and evidence to reach a fair conclusion. The authority's failure to apply the relevant rules appropriately led to the respondent benefiting from a misinterpretation of legal precedents.

Issue 5: Interpretation of legal provisions and precedent cases
The judgment refers to legal precedents and provisions to guide the adjudicating authority in making a well-founded decision. It cites the Apex Court's ruling on fiscal jurisprudence, emphasizing that hardship to the assessee is not a relevant consideration in tax matters. The judgment underscores the need for a thorough analysis of facts and evidence to ensure the proper application of penalty provisions and deterrence of law violations.

In conclusion, the judgment remands the matter to the adjudicating authority for re-adjudication, stressing the importance of a comprehensive review of the case and a fair application of penalty provisions in accordance with the law.

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