2017 (9) TMI 1483 - AT - Central Excise

Penalty u/s 11AC - Clandestine removal - Held that - there is a requirement to establish fraud, collusion, contravention of Rules with an intent to evade payment of duty etc., to invoke penal provisions u/s 11 AC of the CEA, 1944 - In any event, there is no material available on record of fraud, collusion etc. to impose penalty u/s 11 AC of the Act, 1944 - appeal allowed - decided in favor of appellant.

Summary

Issues involved:
Manufacture and clearance of excisable goods without obtaining Central Excise Registration Certificate and without payment of duty, imposition of penalty under Section 11 AC of the Act, interpretation of legal identity of a business entity owned by the Government of India, imposition of penalty under Rule 27 of the Central Excise Rules.

Analysis:
The case involved the appellants engaged in manufacturing excisable goods without the necessary Central Excise Registration Certificate and without paying the required duty. The Adjudicating Authority confirmed the duty demand and imposed a penalty under the Central Excise Rules. The Revenue appealed for the imposition of penalty under Section 11 AC of the Act, which was allowed by the Commissioner (Appeals) who modified the penalty amount. The main issue revolved around the legal identity of the appellants, a business entity owned by the Government of India, and whether they were eligible for exemption from duty payment. The Commissioner (Appeals) held that the penalty under Section 11 AC was mandatory due to evasion of duty. However, the appellate tribunal noted that penal provisions under Section 11 AC require establishing fraud, collusion, or contravention of rules with intent to evade duty, which was not evident in this case as the appellants had paid the duty and there was no proof of fraud or collusion. The tribunal also disagreed with the Commissioner (Appeals) regarding the imposition of penalty under Rule 27 and upheld the Adjudicating Authority's decision.

The tribunal emphasized that there was no material on record to support the imposition of penalty under Section 11 AC as there was no evidence of fraud or collusion by the appellants. Additionally, the tribunal highlighted that the appellants, being directly under the Ministry of Finance, Department of Economic Affairs, did not gain from the situation, further weakening the case for penalty imposition. The tribunal set aside the Commissioner (Appeals) order and upheld the decision of the Adjudicating Authority, ultimately allowing the appeal filed by the appellants. The judgment was pronounced in open court on 05.05.2017.