2019 (4) TMI 1071 - AT - Central Excise

Unsustainable penalty and interest for alleged duty evasion without proper adjudication.

The Tribunal held that penalty and interest imposed for alleged evasion of Central Excise Duty without proper adjudication under Section 11A were ... Levy of Interest and penalty - Valuation - Sugar confectionary - valued u/s 4 or 4A of the Central Excise Act - benefit of abatement - N/N. 13/2002-CE (Non-tariff) dated 01/03/2002 - the impugned order has imposed penalty and demanded interest on the basis that the appellants have evaded payment of Central Excise Duty - HELD THAT:- In the present case, no adjudication proceedings under Section 11A of the Central Excise Act or any other provisions had been conducted at all. A close perusal of Section 11AC and 11AB makes it abundantly clear that these sections can only be invoked in cases where determination regarding evasion of payment of duty had taken place under Section 11A. The impugned order passed under Section 11AC and Section 11AB cannot be sustained - Penalty under Section 11 AC cannot be imposed without any proceedings on a charge of duty evasion - Appeal allowed - decided in favor of appellant. Issues:1. Imposition of penalty and interest for alleged evasion of Central Excise Duty without proper adjudication under Section 11A.Detailed Analysis:The case involved the appellant, a manufacturer of Sugar confectionary, who initially cleared goods under Section 4A of the Central Excise Act with abatement under Notification No. 13/2002-CE. Subsequently, the appellant switched to paying duty under Section 4 of the Act. During an internal audit, the Central Excise Department alleged that the appellant had collected excess duty and issued a Show Cause Notice in 2006 for recovery of interest and imposition of penalty under Section 11AC and Rule 25 of the Central Excise Rule, 1944. The Adjudicating Authority and the Ld. Commissioner (Appeals) upheld the proceedings, leading to the appeal before the Tribunal.The main contention of the appellant was that the penalty and interest imposed were not legally justified. The appellant argued that they had promptly paid the duty upon being informed of the short levy by the authorities, without the need for a Show Cause Notice or adjudication under Section 11A. The appellant contended that for penalty under Section 11AC and interest to be levied, an order determining the duty liability under Sub Section (2) of Section 11A was necessary, which had not been issued in this case. The appellant's advocate emphasized that without a Show Cause Notice and an order under Section 11A, penalty and interest could not be imposed.The Tribunal noted that no adjudication proceedings under Section 11A or any other provisions had taken place in the case. Upon examining Sections 11AC and 11AB, the Tribunal emphasized that these sections could only be invoked when there was a determination of duty evasion under Section 11A. Therefore, the Tribunal concluded that the impugned order imposing penalty and interest under Section 11AC and Section 11AB was unsustainable. It was held that penalty under Section 11AC could not be imposed without proper proceedings on a charge of duty evasion. Consequently, the impugned order was set aside, and the appeal was allowed.