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2017 (2) TMI 566 - HC - Central ExciseWhether the CESTAT is empowered not to impose penalty u/r 173Q of CER, 1944 read with Section 11AC of Central Excise Act, 1944 on the assessee who evaded Central Excise Duty by suppression of facts and in contravention of Rules under Central Excise Law? Held that: - on considering section 11AC of the Act, 1944 and Rule 173Q of the Rules, 1944, both operates in different fields and the penalty leviable under both the provisions are different. The penalty u/s 11AC of the Act, 1944 is leviable on the person who is liable to pay duty as determined under subsection (2) of Section 11 of the Act, 1944. However, the penalty u/r 173Q of the Rules, 1944 is imposable / leviable on the manufacturer, producer, registered person of a warehouse or a registered dealer. Therefore, in a given case the penalty u/s 11AC of the Act, 1944 as well as u/r 173Q of the Rules, 1944 i.e. under both the provisions shall be leviable / imposable. In a case where a composite penalty is levied under both the provisions i.e. u/r 173Q of the Rules, 1944 and section 11AC of the Act, 1944 and if it is found that it is not possible to bifurcate the penalty imposable u/s 11AC of the Act, 1944 and Rule 173Q of the Rules, 1944 and/or it is not possible to apportion quantum of penalty imposable u/r 173Q of the Rules, 1944 and/or section 11AC of the Act, 1944, in such a case the matter may be remanded to the appropriate Adjudicating Authority to redetermine the quantum of penalty either u/r 173Q of the Rules, 1944 and/or section 11AC of the Act, 1944, as the case may be. However, to set aside the penalty imposed on the ground that a composite penalty has been imposed under Rule 173Q of the Rules, 1944 and section 11AC of the Act, 1944, shall be giving a premium to the person who has committed the wrong and/or has evaded the duty and/or has contravened the Rules. The consequences in such a case would be that there shall not be any penalty imposed under any of the provisions i.e. either under Rule 173Q of the Rules, 1944 or under Section 11AC of the Act, 1944. The learned CESTAT has materially erred in quashing and setting aside the order of penalty imposed upon the assessee, imposed u/r 173Q of the Rules, 1944 and Section 11AC of the Act, 1944 - appeal allowed - decided in favor of appellant-Revenue.
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