1999 (5) TMI 570 - AT - Central Excise

Tribunal grants relief in appeal, penalty not retroactive, enforcement unsustainable

LAULS LTD. Versus COMMISSIONER OF C. EX., NEW DELHI

The Tribunal allowed the appeal, finding that the demand confirmation under Section 11A with an extended period was upheld, but the imposition of penalty ... Penalty - Mandatory penalty - Demand Issues:1. Demand confirmation under Section 11A of the Central Excise Act, 1944 with extended period invocation.2. Imposition of penalty under Rule 173Q(1) read with Section 11AC of the Central Excise Act, 1944.3. Applicability of penalty provisions retrospectively and machinery for adjudicating demands under Section 11D.Analysis:Issue 1: Demand confirmation under Section 11A with extended period:The Commissioner confirmed a demand of Rs. 28,87,812/- under Section 11A of the Central Excise Act, 1944, invoking an extended period of 5 years. Additionally, an amount of Rs. 13,595/- under the same section was confirmed. This was based on findings that the appellant failed to deposit excise duty collected on goods supplied to the Indian Railways, as revealed during a physical verification where discrepancies were found. The appellant raised bills covering both supplies and escalation charges, collecting excise duty on both. The appellant admitted to raising bills for escalation charges containing excise duty and receiving payments accordingly. The Commissioner upheld the demand after considering the submissions made.Issue 2: Imposition of penalty under Rule 173Q(1) read with Section 11AC:The appellant contested the imposition of a penalty of Rs. 29,01,407/- under Rule 173Q(1) read with Section 11AC. The appellant argued that Section 11AC was not applicable retrospectively to their case, as it was introduced after the period in question. The Tribunal noted that the penalty amount was equal to the confirmed duty amount, indicating it was imposed under Section 11AC. However, the Tribunal found ambiguity in the order regarding the apportionment of the penalty amount. As the demand was for a period predating the introduction of Section 11AC, the Tribunal held that the penal provisions of Section 11AC could not be applied. The Tribunal also noted that the demand was raised under Section 11D, and without machinery provision under this section, enforcement of demands and penalties was legally unsustainable.Issue 3: Applicability of penalty provisions retrospectively and machinery under Section 11D:The Tribunal considered the arguments regarding the retrospective application of penalty provisions and the absence of machinery provision under Section 11D for adjudicating demands. It was observed that demands accruing before the introduction of Section 11AC could not be subject to its penal provisions. Citing a decision by the Hon'ble Madras High Court, the Tribunal emphasized that without machinery provision under Section 11D, demands and penalties could not be enforced legally. Consequently, the Tribunal allowed the appeal, finding merit in the appellant's contentions and providing relief accordingly under the law.