2007 (5) TMI 38 - AT - Central Excise

Tribunal overturns penalty decision, rules in favor of assessee on duty non-payment issue.

The Tribunal re-considered the penalty issue as directed by the High Court, focusing on whether non-payment of duty resulted from fraud or contravention ... Penalty – Alleged that appellant is clandestine removal and it is a case of fraud attracting provisions of section 11AC of CEA, 1944 and liable for penalty – Held that requirement of 11AC of CEA,1944 not fulfilled and penalty set aside Issues:1. Re-consideration of penalty issue before Tribunal.2. Interpretation of Section 11AC of the Act regarding non-payment of duty.3. Dispute over shortage of inputs leading to non-payment of duty.4. Allegation of clandestine removal and fraud attracting Section 11AC.5. Assessment of evidence and findings in favor of the assessee.Issue 1: Re-consideration of penalty issue before TribunalThe Tribunal was tasked with re-considering the issue of penalty, as directed by the Hon'ble High Court, emphasizing the importance of determining whether non-payment of duty was due to fraud, collusion, wilful misstatement, or contravention of the Act.Issue 2: Interpretation of Section 11AC of the Act regarding non-payment of dutyThe key issue revolved around whether the non-payment of duty at the due time was a result of fraud, collusion, wilful misstatement, or suppression of facts with the intent to evade payment of duty as outlined under Section 11AC of the Act. The Tribunal was required to address this question, which had not been specifically dealt with previously.Issue 3: Dispute over shortage of inputs leading to non-payment of dutyThe appellant argued that the demand arose due to a purported shortage of inputs during stock verification by Central Excise officers. The appellant provided an explanation supported by an issue slip, stating that the short-found input was issued for processing and available on the shop floor. However, the adjudicating authority rejected this explanation, deeming the short-found goods to have been removed without duty payment.Issue 4: Allegation of clandestine removal and fraud attracting Section 11ACThe departmental representative contended that the established shortage indicated clandestine removal, constituting fraud under Section 11AC. However, the evidence and findings favored the assessee, with no material supporting the view that the short-found quantity was removed from the factory clandestinely.Issue 5: Assessment of evidence and findings in favor of the assesseeThe Tribunal found that the appellant's explanation regarding the inputs under process was reasonable and not an afterthought. The Commissioner's 'deemed' basis for assuming clandestine removal lacked legal or practical support. Consequently, the case did not meet the requirements of Section 11AC, leading to the setting aside of the penalty and allowing the appeal in that regard.