2018 (9) TMI 167 - AT - Central Excise

Rectification of Mistake - applicant submits that in this Tribunal s order, there is no finding regarding the penalty whereas, they have made the submissions in the grounds of appeal for setting aside the penalty - Held that - The ld. Counsel is correct in pointing out that this Tribunal in the order dated 12.02.2018 did not give any finding as regards imposition of penalty under Rule 25(1)(a) ordered by the original authority. We find that in the same order, the Tribunal has categorically held that there is no suppression of facts on the part of the appellant - Since the penalty imposed under Rule 25(1)(a) is subject to the provisions of Section 11AC, the ingredients of Section 11AC must exist for imposition of penalty under Section 25(1)(a). Penalty under Section 11AC can only be imposed when demand notice under Section 11A(1) is issued - Penalty under Rule 25(1)(a) is not sustainable. The order of the Tribunal dated 12.02.2018 stand rectified - ROM Application allowed.

Summary

Issues: Rectification of mistake in Tribunal's order regarding penalty under Rule 25(1)(a) of Central Excise Act, 1944.

Analysis:
1. Rectification of Mistake Regarding Penalty Imposition:
The applicant sought rectification of a mistake in the Tribunal's order concerning the penalty under Rule 25(1)(a) of the Central Excise Act, 1944. The applicant contended that although they had raised grounds for setting aside the penalty, the Tribunal's order did not address this issue specifically. The penalty was imposed for not paying excise duty on time, but the Tribunal had already determined that there was no suppression of facts by the appellant. The penalty under Rule 25(1)(a) is subject to the provisions of Section 11AC, which necessitates the existence of specific conditions for its imposition. Notably, the Tribunal had not issued a show cause notice for demanding excise duty under Section 11A(1), a prerequisite for imposing penalties under Section 11AC. The Tribunal concluded that since the essential elements for imposing a penalty under Section 11AC were not met, the penalty under Rule 25(1)(a) was unsustainable. Citing relevant case law, the Tribunal held that the penalty imposed under Rule 25 was to be set aside, thereby rectifying the order accordingly.

2. Legal Submissions and Findings:
The legal representatives for both parties presented their arguments before the Tribunal. The applicant's counsel highlighted the absence of a specific finding on the penalty in the Tribunal's initial order and emphasized that the penalty under Rule 25(1)(a) was not justifiable given the circumstances. In contrast, the respondent's representative argued in favor of upholding the penalty, asserting that the appellant's failure to pay excise duty on time warranted the imposition of the penalty under Section 25(1)(a). Upon careful consideration of the submissions from both sides, the Tribunal acknowledged the oversight in its previous order and concurred with the applicant's position that the penalty under Rule 25(1)(a) could not be sustained due to the lack of requisite conditions as per Section 11AC.

3. Judicial Decision and Rectification Outcome:
After evaluating the arguments and legal precedents cited, the Tribunal concluded that the penalty imposed under Rule 25(1)(a) was unwarranted in the absence of compliance with the statutory provisions outlined in Section 11AC. Consequently, the Tribunal rectified its previous order by setting aside the penalty and allowed the applicant's application for rectification. The rectification served to align the order with the legal principles and case law cited during the proceedings, thereby ensuring a fair and just outcome in the matter.