2007 (10) TMI 509 - Commissioner - Central Excise

Appellants win appeal on Additional Excise Duty dispute, penalties overturned

IN RE: SHREE PANDURANG SSK LTD.

IN RE: SHREE PANDURANG SSK LTD. - 2008 (226) E.L.T. 308 (Commr. Appl.) Issues Involved:1. Liability to pay Additional Excise Duty (AED) under Section 7 of the Sugar Export Promotion Act (SEPA) and related provisions.2. Invocation of the extended period under proviso to Section 11A of the Central Excise Act.3. Validity of certificates issued by the export agency.4. Imposition of penalties and confiscation of property under Central Excise Rules.Detailed Analysis:1. Liability to Pay Additional Excise Duty (AED):The central question was whether the appellants were required to pay AED under Section 7 of SEPA read with Section 11A of the Central Excise Act and Rule 9(2) of the Central Excise Rules. The department argued that the appellants failed to export the apportioned quota of sugar and thus were liable to pay AED. The appellants contended that AED is only leviable if they fail to supply the quantity demanded by the export agency, which did not happen in their case. The export agency did not demand the sugar, and thus, the appellants were not liable to deliver it. The department's stance that the export agency's certificates were invalid was also challenged. The judgment concluded that without a demand from the export agency, the obligation to deliver sugar did not arise, and hence, AED could not be demanded.2. Invocation of the Extended Period:The appellants argued that the extended period under Section 11A was not applicable as the facts were known to the department, and there was no suppression of facts or fraud. The department had been aware of the issue since at least 1993-94. The judgment agreed with the appellants, stating that the ingredients for invoking the extended period were absent. The department had knowledge of the release orders, and the appellants had been filing regular returns. The invocation of the extended period was thus deemed unjustified.3. Validity of Certificates Issued by the Export Agency:The department dismissed the certificates issued by the export agency as non-governmental and irrelevant. However, the judgment clarified that the export agency was notified by the Central Government and was lawful to perform its functions under SEPA. The certificates issued by the export agency were considered valid. The judgment emphasized that the export agency had the authority to decide whether to export the sugar or sell it in the domestic market, and the appellants had no control over this decision once the sugar was delivered to the export agency.4. Imposition of Penalties and Confiscation of Property:The appellants contested the imposition of penalties under Rule 173Q read with Section 11AC of the Central Excise Act, arguing that SEPA only allowed a maximum penalty of 10% of the duty outstanding. The judgment supported this contention, stating that the penalty provisions of the Central Excise Act were not applicable for AED under SEPA. Additionally, the confiscation of land, buildings, and machinery was also deemed inappropriate as SEPA did not provide for such measures.Conclusion:The judgment allowed all five appeals, setting aside the impugned orders. The appellants were not liable to pay AED as the export agency had not demanded the sugar, and the extended period for issuing demands was not applicable. The certificates issued by the export agency were valid, and the penalties and confiscation imposed were not maintainable under the law. The judgment emphasized the need to understand SEPA's provisions in their entirety and not in isolation, reaffirming the appellants' compliance with the law.