Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2022 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (12) TMI 770 - CESTAT KOLKATALevy of penalty u/s 25(1) of the Central Excise Rules, 2002 - evasion of duty - contravention of Rule 16B of the Central Excise Rules, 2002 - HELD THAT:- There is no evidence on record to show that Wheels & Axles (Semi-finished products) sent to the hired premises was with mala fide intention or the appellant was in preparation to remove the goods subsequently. If the same were to be removed subsequently, the appellant could have removed the same from its own premises and there was no reason for them to first shift the goods to the hired premises and then remove them without payment of duty. In the overall facts and circumstances of the case, the explanation given by the appellant that since there were constraints in completing shift work of machining at their own premises and the additional premise was hired, has to be accepted. As such, the benefit of doubt is required to be extended to the appellants. For the purpose of invoking Section 11AC of the Act, the condition precedent is that the duty has not been levied, or paid or short-levied or short-paid or the refund is erroneously granted by reasons of fraud, collusion or any willful misstatement or suppression of facts. If these ingredients are not present, penalty under Section 11AC cannot be levied. Since Rule 25 can be invoked subject to the provisions of Section 11AC of the Act, as a natural corollary, the ingredients mentioned in Section 11AC are also required to be considered while determining the question of levying of penalty under Rule 25 of the Central Excise Rules. The imposition of penalty on both the appellants is un-called for - since Appellant No.1, had transferred the semi-finished goods for machining to the Appellant No.2, without permission from the Department, it is a procedural and technical lapse on the part of the appellants and the same requires imposition of token penalty in terms of Rule 27, which provides a maximum penalty of Rs.5,000/-. Accordingly, penalty on both the appellants is reduced to Rs.5,000/- each. Appeal allowed in part.
|