2008 (1) TMI 347 - AT - Central Excise

Tribunal rules in favor of appellants, penalty reduced, no retroactive application of Section 11AC.

The Tribunal allowed the appellants' appeal regarding the inclusion of liners in the aggregate value of clearances, finding no intention to evade duty. ... Bona fide belief that cost of liners supplied to job-worker was not includible in the assessable value of HDPE bags - claim of bona fide belief cannot be rejected mere for the reason that it was raised for the first time during hearing before lower appellate authority no suppression of facts – hence larger period not invokable – since clearance of goods has taken before enactment of Section 11A, penalty cannot be imposed on ground that section was part of statue at time of issue of SCN Issues:1. Whether the value of liners supplied by a third party to a job worker should be included in the aggregate value of clearances.2. Whether there was suppression of facts with intention to evade payment of duty.3. Justifiability of the penalty imposed.Analysis:Issue 1: Inclusion of Liners in Aggregate ValueThe appellants, engaged in manufacturing HDPE bags with liners supplied by a job worker, faced a demand as the liners' value was not included in the aggregate value of clearances. The appellants argued that they believed the cost of liners was not to be included in the assessable value. The Tribunal found that as there was no intention to evade duty and the liners were supplied directly by a third party to the job worker, the demand denying the SSI exemption was not sustainable. The appellants agreed to rectify the short-levy, and the penalty was reduced to Rs. 5,000.Issue 2: Suppression of FactsThe Commissioner had rejected the appellants' claim of not suppressing facts on the grounds that it was raised for the first time during the appeal. However, the Tribunal held that the plea regarding bona fide belief and suppression of facts was not controverted by the lower appellate authority. As suppression of facts was not established, the larger period could not have been invoked. The demand for the short-levy during the normal period was upheld, and the penalty was reduced to Rs. 5,000.Issue 3: Penalty ImpositionThe revenue sought to impose an equal amount of penalty under Section 11AC, but the Tribunal dismissed the appeal. The clearances in question occurred before Section 11AC was enacted, and therefore, penalty under that section could not be imposed retroactively. The Tribunal allowed the party's appeal and dismissed the revenue's appeal seeking to impose a penalty under Section 11AC.In conclusion, the Tribunal allowed the appellants' appeal on the terms of rectifying the short-levy and reducing the penalty, while dismissing the revenue's appeal seeking to impose a penalty under Section 11AC retroactively.