2015 (11) TMI 776 - AT - Central Excise

Penalty under Central Excise Act not applicable due to lack of financial gain from violation

M/s. Shri Durga Laghu Udyog Versus CCE, Noida

The Member (Judicial) concluded that the penalty under section 11AC of the Central Excise Act was not applicable in the case. Despite the appellant ... SSI exemption under Notification No.8/03 dt.1.3.2003 - Penalty u/s 11AC - Invocation of extended period of limitation - Suppression of facts - Held that:- It is fact on record that investigation was conducted on 14.03.2005 wherein it was found that turnover of the appellant exceeded from the exemption limit during the period 2003-04. It is also a fact that if the appellant has taken registration they were entitled for cenvat credit on the inputs and the credit was available with them more than the duty payable. Therefore, by suppressing the facts, the appellant was not going to get any gain. In the circumstances, I find that it was only a mistake of the appellant of not paying duty during the relevant period. Accordingly, I hold that the charge of suppression against the appellant is not sustainable. As the charge of suppression is not sustainable, consequently, mandatory penalty under section 11AC is not imposable on them. With these terms, I set aside penalty equal to the duty - Decided in favour of assessee. Issues:Appeal against penalty under section 11AC of Central Excise Act, 1944 based on exceeding SSI exemption limit and duty payment.Analysis:The case involved an appeal against a penalty imposed under section 11AC of the Central Excise Act, 1944, due to the appellant exceeding the Small Scale Industry (SSI) exemption limit. The appellant availed the SSI exemption under Notification No. 8/03 but was found to have exceeded the exemption limit during an investigation in 2005. The appellant subsequently paid the duty on the excess clearance. A show cause notice was issued in 2008 invoking the extended period of limitation for duty payment and penalty imposition. The adjudicating authority initially dropped the penalty citing lack of awareness by the appellant about exceeding the exemption limit. However, the Revenue appealed, leading to a further examination by the Commissioner (Appeals) who held that suppression of facts excludes the applicability of section 11A (2B) and confirmed the penalty based on the Supreme Court judgment in Rajasthan Spinning & Weaving Mills.The appellant contended that the exceeding of the exemption limit was an inadvertent mistake, and they were unaware of the violation. They argued that had they known, they would have taken necessary actions like registration and availing cenvat credit on inputs. The appellant claimed that the cenvat credit available during the period exceeded the duty demand, indicating no malicious intent to evade payment. They also relied on a Tribunal decision in R.R.Comerbhoy Pvt.Ltd. vs. CCE to support their argument against penalty imposition based on suppression.On the other hand, the Revenue argued that the case involved clear suppression of facts, emphasizing that payment of duty before a show cause notice does not absolve the appellant from penalty. They cited legal precedents including the Supreme Court judgment in Rajasthan Spinning & Weaving Mills and the Karnataka High Court case of CC, Bangalore vs. M/s. American Power Conversion (India) Pvt.Ltd. to support their stance that ignorance of the law cannot be an excuse for exceeding the turnover limit.After hearing both parties, the Member (Judicial) observed that the investigation confirmed the appellant's turnover exceeded the exemption limit, but due to the availability of cenvat credit on inputs, there was no financial gain from the suppression of facts. The Member concluded that the charge of suppression was not sustainable, leading to the decision that the mandatory penalty under section 11AC was not applicable. Consequently, the penalty equal to the duty was set aside, and the appeal was allowed.