No Penalty or Interest if Duty Paid Before Show Cause Notice, Absent Fraud or Misrepresentation.

COMMISSIONER OF C. EX., DELHI-III, GURGAON Versus MACHINO MONTELL (I) LTD.

COMMISSIONER OF C. EX., DELHI-III, GURGAON Versus MACHINO MONTELL (I) LTD. - 2004 (168) E.L.T. 466 (Tri. - LB), 2004 (62) RLT 709 (LB) Issues involved: Whether penalty under Section 11AC or interest under Section 11AB is applicable when duty is deposited before the issue of show cause notice.

Summary:
The Larger Bench of the Appellate Tribunal CESTAT, New Delhi considered conflicting decisions regarding the imposition of penalty under Section 11AC or interest under Section 11AB when duty is paid before the issuance of a show cause notice. The assessee argued that penalty under Section 11AC cannot be imposed if duty is deposited before the notice, citing relevant Tribunal decisions. The Revenue contended that penalty can be imposed regardless of duty payment timing in cases of fraud or suppression of facts. The matter was referred to the Larger Bench due to conflicting decisions by different Benches.

The Tribunal noted a decision of the Karnataka High Court rejecting a reference application by the Revenue, stating that penalty and interest are not leviable if duty is paid before the show cause notice. The Tribunal dismissed the Revenue's petition seeking a direction to refer questions of law to the Court, as the Tribunal's decision was reasoned based on duty payment before the notice, with no fraud or misrepresentation involved. The Tribunal upheld its decision, as the Supreme Court had rejected the appeal against the same.

The Departmental Representative argued that penalty under Section 11AC should apply for violations, regardless of duty payment timing. However, the Tribunal, in line with the Karnataka High Court decision, held that no penalty or interest can be imposed when duty is paid before the show cause notice. Following the Karnataka High Court's decision and the Supreme Court's dismissal of the Revenue's appeal, the Tribunal upheld that no penalty can be imposed under Section 11AC in such cases. The appeal was dismissed by the Tribunal.