2020 (1) TMI 670 - AT - Central Excise

Initiation of proceedings for imposition of penalties - Imposition of bar under Rule 8 (3A) of Central Excise Rules, 2002 - default in payment of Central Excise Duty - Additional Commissioner, Central Excise, Ghaziabad through his letter dated 15.12.2016 referring to appellant s letter dated 28.11.2016 addressed to Commissioner informed that the appellant had paid defaulted Central Excise duty of around ₹ 3 crores with applicable interest of around ₹ 15 lakhs and therefore, no further action from the end of Revenue was warranted. HELD THAT - The letter dated 15.12.2016 was decision of revenue, communicating that no further action was warranted from the end of revenue. Therefore, if revenue wished to initiate proceedings for imposition of penalty under Rule 8 (3A) then revenue should have approach Commissioner (Appeals) challenging the letter dated 15.12.2016 issued by Additional Commissioner. After the appeal period for filing appeal before Commissioner (Appeals) from the date of issue of the said letter dated 15.12.2016 that no further action was warranted, was over the said decision become final. Therefore, the said show cause notice dated 17.07.2017 is not sustainable. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Imposition of penalty under Rule 8 (3A) of Central Excise Rules, 2002 despite prior communication from Additional Commissioner.
2. Validity of show cause notice issued by Assistant Commissioner after communication from Additional Commissioner.
3. Interpretation of the decision communicated by revenue through a letter dated 15.12.2016.
4. Applicability of the decision communicated by revenue on the initiation of penalty proceedings.

Analysis:
1. The case involved the imposition of a penalty under Rule 8 (3A) of the Central Excise Rules, 2002 on the appellant for defaulting in the payment of Central Excise duty. The appellant had initially paid the defaulted amount through Cenvat credit and later in cash, along with interest. However, despite a communication from the Additional Commissioner stating that no further action was warranted, a show cause notice was issued by the Assistant Commissioner for imposing a penalty.

2. The appellant argued that the proceedings for penalty were unwarranted after the communication from the Additional Commissioner. The appellant contended that the Department should have reviewed the decision if they intended to initiate penalty proceedings. On the other hand, the Authorized Representative argued that the letter was not an Order-in-Original and hence not subject to review, citing a previous case law to support the consequences under Rule 8 (3A).

3. The Tribunal analyzed the letter dated 15.12.2016 as a decision of the revenue, communicating that no further action was necessary. The Tribunal emphasized that if the revenue intended to proceed with penalty imposition, they should have approached the Commissioner (Appeals) to challenge the decision communicated by the Additional Commissioner. The Tribunal noted that after the appeal period lapsed, the decision communicated through the letter became final, rendering the subsequent show cause notice unsustainable.

4. Ultimately, the Tribunal set aside the impugned order and allowed the appeal, stating that the show cause notice issued after the communication from the Additional Commissioner was not sustainable. The appellant was entitled to consequential relief as per the law. The judgment highlighted the importance of finality in decisions communicated by revenue authorities and the need for proper procedures to be followed in initiating penalty proceedings.