2017 (11) TMI 1092 - AT - Central Excise

Penalty u/r 25 of the CER 2002 - contravention of Rule 8 (3A) of the CER 2002 - Held that - in the present case there was a delay in payment of duty but the same was paid later on along with interest voluntarily before the issue of show-cause notice. In such a situation, the appellant s case is squarely covered by the decision of the Hon ble Karnataka High Court in the case of CC Vs. Powerica Ltd. 2011 (9) TMI 665 - Karnataka High Court , where it was held that uty and penalty is paid even before the issue of Show Cause Notice and the said fact is informed to the proper officer thus he shall not initiate any proceedings to recover the duty and interest, much leas for imposition of penalty - Rule 8(3A) has been held to be ultra vires by various High Courts - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Imposition of penalty under Rule 25 of the Central Excise Rules 2002 for contravention of Rule 8(3A)
- Interpretation of Section 11A(1b) and Section 11A(2) of the Act
- Validity of the impugned order and sustainability in law

Analysis:

Imposition of Penalty under Rule 25:
The appellant was penalized under Rule 25 of the Central Excise Rules 2002 for contravening Rule 8(3A) due to delayed payment of duty for the months of September to November 2012. However, the appellant voluntarily paid the duty along with interest before the show-cause notice was issued. The appellant argued that the penalty was unwarranted as the duty was paid promptly and informed to the Department. The Tribunal noted that previous judicial precedents like CC Vs. Powerica Ltd. and CCE Vs. Adecco Flexione Workforce Solutions Ltd. supported the appellant's position. Additionally, various High Courts had declared Rule 8(3A) ultra vires, leading the Tribunal to conclude that the penalty under Rule 25 was not justified in this case.

Interpretation of Section 11A(1b) and Section 11A(2):
The appellant contended that the impugned order disregarded statutory provisions like Section 11A(1b) and Section 11A(2) of the Act. The appellant argued that since the duty was paid with interest before the notice, the Department should not have initiated proceedings as per Section 11A(2). Citing legal authorities and decisions, the appellant emphasized that the Department's actions were contrary to the statutory mandate. The Tribunal agreed with the appellant's interpretation and found the proceedings initiated by the Department to be in violation of Section 11A(2).

Validity of the Impugned Order:
After considering the arguments from both parties and reviewing the relevant legal precedents, the Tribunal concluded that the impugned order was not legally sustainable. The Tribunal found that the penalty under Rule 25 was unjustified given the circumstances of the case, where the duty was paid voluntarily before any formal notice. Relying on the decisions of the Hon'ble Karnataka High Court and the declarations of Rule 8(3A) being ultra vires by various High Courts, the Tribunal set aside the impugned order and allowed the appeal of the appellant with consequential relief.

In conclusion, the Tribunal held that the penalty under Rule 25 for contravention of Rule 8(3A) was not applicable in this case, and the impugned order imposing such penalty was set aside. The Tribunal's decision was based on the voluntary payment of duty with interest before the issuance of the show-cause notice, in line with relevant legal provisions and judicial precedents.