2015 (10) TMI 148 - AT - Central Excise

Central Excise duty penalties modified, partners exempt, employee appeal allowed.

The case involved a demand for Central Excise duty, interest, and penalties on the assessee and others due to shortages of goods. The Commissioner ... Clandestine removal of goods - Shortage of goods found - Denial of CENVAT Credit - supplementary Invoices - Held that:- supplier admitted the clandestine removal of the goods - the supplier paid the duty and issued supplementary invoices to the assessee whereby a short levy by reason of fraud, collusion or misstatement or suppression of fact with intent to evade payment of duty. So, the assessee is not eligible to avail CENVAT credit. - adjudicating authority already invoked Section 11AC for imposition of penalty on the assessee and therefore, penalty on the employee is not warranted. It is seen that the Hon'ble Gujarat High Court in the case of Pravin N. Shah vs. CESTAT (2012 (7) TMI 850 - GUJARAT HIGH COURT) held that once the firm is penalised, separate penalty is not imposable upon partner of the firm, as the partner is not a separate legal entity and cannot be equated with employee of firm. - Decided against assessee. Issues:1. Demand of Central Excise duty, interest, and penalties on the assessee and other persons.2. Imposition of penalties on various individuals and entities.3. Option to pay penalty of 25% of the duty amount.4. Eligibility to avail modvat credit.5. Imposition of penalty on an employee of the firm.6. CENVAT credit eligibility on duty paid by the supplier.7. Applicability of penalties on partnership firms and partners.Detailed Analysis:1. The case involved a demand for Central Excise duty, interest, and penalties on the assessee and others following a visit by Central Excise officers resulting in shortages of finished goods and raw materials. A show cause notice was issued proposing duty demands, interest, and penalties. The adjudicating authority confirmed the duty demand, interest, and penalties, which were partially modified by the Commissioner (Appeals) setting aside some penalties and allowing an option to pay 25% of the duty amount within 30 days.2. Penalties were imposed on the supplier of raw materials, the partner of the assessee firm, and the manager cum authorized signatory. The Commissioner (Appeals) set aside penalties on the partner and the supplier, while penalties on the manager were challenged in the appeal. The Revenue also appealed against setting aside penalties and allowing the penalty payment option to the assessee.3. The issue of the option to pay 25% of the duty amount as penalty within 30 days was a point of contention. The appellant had already paid the entire duty, interest, and 25% penalty within the stipulated time, leading the Tribunal to dismiss the Revenue's appeal on this ground citing a precedent from the Hon'ble Gujarat High Court.4. The assessee claimed eligibility to avail modvat credit on the duty paid by the supplier of raw materials. However, the Tribunal found that the supplier had admitted clandestine removal of goods and issued supplementary invoices due to fraud, collusion, or misstatement, making the assessee ineligible for CENVAT credit.5. Regarding the imposition of a penalty on an employee of the firm, the Tribunal referred to a judgment by the Hon'ble Gujarat High Court and held that since the adjudicating authority had already imposed penalties on the firm, separate penalties on the employee were not warranted.6. The Tribunal discussed the applicability of penalties on partnership firms and partners, citing judgments by the Hon'ble Gujarat High Court. It was concluded that once the firm is penalized, separate penalties cannot be imposed on partners as they are not separate legal entities.In conclusion, all appeals filed by the assessee and the Revenue were dismissed, except for the appeal filed by the employee, which was allowed with consequential relief.