TaxTMI 
TaxTMI 
TaxTMI 
2015 (9) TMI 350
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....lty equal to the duty so determined" in Section 11AC of the Central Excise Act, 1944 is in the nature of mandatory penalty and if so whether the appellate authority i.e. of the CESTAT can hold that no penalty is called for on the respondent in facts of the case ? 2. Whether based on the facts and in the circumstances of the case when it has been upheld that amortization and addition of value of moulds is no longer resintegra and only requantification of duty is involved, no penalty is called for is correct in view of proviso (3) to Section 11AC of Central Excise Act, 1944 wherein it is provided that when duty determined is reduced or increased by the appellate Tribunal, the duty determined is reduced or increased by the appellate Tribunal....
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....l should not have deleted the penalty. That part of the Tribunal's order is contrary to law. 4 On the other hand, Ms.Anjali Hirawat appearing on behalf of the assessee would submit that the Tribunal's view is neither perverse nor vitiated by any error of law apparent on the face of the record. The Tribunal has rightly observed that the issue was of requantification and did not justify imposition of penalty. The penalty has been rightly deleted. 5 In any event, there was no finding in the Order-in-Original demonstrating willful mis-statement or suppression of facts or contravention of any of the provisions of the Central Excise Act or the Rules made thereunder with intent to evade payment of duty. Therefore, the penalty could not h....
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....proviso to this section. 8 The Order-in-original indicates as to how the assessee was proceeded against. The assessee recovered tooling, development and modification charges for moulds to be used for manufacture of plastic moulded parts from M/s. Telco for their vehicle Tata Safari. These charges were recovered by issuance of Debit Notes during the period of September 1997 to March 1999, as per Annexure B to the show cause notice dated 8th October, 2000. These Debit Notes were withdrawn on 26th October, 1999 on the basis of intelligence that the assessee was not discharging the correct duty liability. The investigations were carried out which revealed that the assessee was manufacturing moulded parts such as Dash Board, Rear Bumper, Consol....
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....cases the demand for lumpsum recovered as mould development charges from various customers was confirmed by the Commissioner of Central Excise and this order was set aside by the Customs, Excise and Gold Control Appellate Tribunal. The Tribunal observed that the entire tooling and development charges appear to have been taken as an additional value for the purpose of demand by the Commissioner, without considering the Board's Circular issued on the subject. Hence, it did not allow the entire costs of moulds to be loaded on the assessable value. The Order-in-original therefore refers to this Board Circular and the arguments of the assessee based on the Tribunal's order. 9 Paragraph 47 of the Order-in-original indicates as to how the....
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....alty. The penalty provisions may be termed as mandatory, but the imposition itself has to precede the satisfaction in terms of Section 11AC. That was not recorded in the Order-in-original. 10 In the circumstances, whether the Tribunal's earlier order would be of any assistance to the assessee appellant. The adjudicating authority having not recorded any such satisfaction there was no justification for upholding the imposition of penalty. The Tribunal may have recorded a single line conclusion and with regard to requantification of duty dispute, but we have independently perused the record, applied our mind and found that the ingredients of Section 11AC are not attracted to the given facts and circumstances. Therefore, even if the duty ....