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2025 (4) TMI 883 - AT - Central ExciseClandestine removal - shoratge of finished goods and raw materials detected during stock verification - issuance of SCN after payment of duty and interest and beyond one year from the date of detection of shortages - existence of mens rea or not - levy of penalty - HELD THAT - The Officers of the D.G.C.E.I. Kolkata had visited the factory of the appellant- company on 07.03.2008 and verified the stock of finished goods and raw materials present. Upon verification they had found a shortage of finished goods as well as raw materials. It is observed that the shortage has been worked out on the basis of eye- estimation and no actual weighment was conducted to verify the quantity of the finished goods and raw materials available in the factory. However with a view to end the litigation the appellant accepted the shortage of finished goods and raw materials as alleged and paid the duty involved on the finished goods and the amount equivalent to the CENVAT Credit availed on the raw materials. The said payment was done even before issuance of the Show Cause Notice. Where an assessee agrees to pay the differential duty before issuance of Show Cause Notice Show Cause Notice need not be issued. In this case it is observed that the duty along with interest has already been paid before issuance of the notice and the same stands appropriated in the impugned order. Levy of penalty - HELD THAT - The investigation has not brought in any evidence to establish that the finished goods and raw materials have been cleared clandestinely. However with a view to end the litigation the appellant accepted the shortage of finished goods and raw materials as alleged and paid the duty involved on the finished goods and the amount equivalent to the CENVAT Credit availed on the raw materials. Just because the appellant has accepted the liability and paid the duty it cannot be presumed that the appellant has suppressed the facts from the department with an intention to evade the duty. As the appellant has paid the entire amount immediately after the detection of the shortage much before the issuance of the Show Cause Notice and there is no evidence of any clandestine removal of the goods the submission of the appellants that there is no mens rea or intention to evade the duty established in this case agreed upon. Accordingly no penalty is imposable on both the appellant-company and its Director on this issue. Reliance placed on the decision of the Hon ble Karnataka High Court in the case of Commissioner of C.Ex. Bangalore-II v. Pushpadeep Enterprises 2012 (10) TMI 496 - KARNATAKA HIGH COURT wherein under similar facts and circumstances the Hon ble High Court has held that penalty is not imposable. Conclusion - i) Where an assessee agrees to pay the differential duty before issuance of Show Cause Notice Show Cause Notice need not be issued. ii) In the absence of any evidence of clandestine removal of goods and where the duty is paid immediately after detection of shortage no penalty is imposable on the appellant-company or its Director. Appeal disposed off.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Tribunal are:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Imposability of Penalty under Section 11AC where duty was paid before issuance of Show Cause Notice Relevant Legal Framework and Precedents: Section 11AC of the Central Excise Act, 1944 imposes penalty equal to the duty determined where duty has not been levied or paid due to fraud, collusion, wilful misstatement, suppression of facts, or contravention with intent to evade duty. Section 11A(2B) provides that if the duty is paid before issuance of the Show Cause Notice, no such notice need be issued. The proviso to Section 11AC reduces penalty to 25% if duty and interest are paid within 30 days of order communication. Precedents relied upon include the Karnataka High Court decision in Commissioner of C.Ex., Bangalore-II v. Pushpadeep Enterprises and the Madras High Court decision in Sitalakshmi Mills Ltd., both holding that penalty is not imposable when duty is paid prior to issuance of Show Cause Notice and no evidence of fraud or evasion is established. Court's Interpretation and Reasoning: The Tribunal observed that the appellant-company admitted the shortages and paid the duty and interest much before the issuance of the Show Cause Notice. The stock verification was based on eye-estimation without actual weighment. No evidence was brought on record by the Revenue to establish any clandestine removal of goods or intention to evade duty. The Tribunal held that mere acceptance of liability and payment of duty does not imply suppression or evasion. Hence, the conditions for imposing penalty under Section 11AC were not met. Key Evidence and Findings: The appellant paid Rs.58,00,000/- by post-dated cheques immediately after detection of shortages on 07.03.2008, prior to issuance of the Show Cause Notice dated 18.03.2010. Statements of company officials admitted the shortages. The Revenue failed to produce evidence of clandestine removal or fraudulent intent. Application of Law to Facts: Applying Section 11A(2B), the Tribunal found that since the duty was paid before Show Cause Notice, the notice itself was not maintainable for penalty purposes. The absence of fraud or evasion negated the applicability of Section 11AC penalty provisions. Treatment of Competing Arguments: The Revenue argued that admission of shortages and payment did not preclude penalty since shortages were detected on verification. The appellant contended that the payment extinguished liability and no penalty was sustainable. The Tribunal favored the appellant's position based on statutory provisions and judicial precedents. Conclusion: Penalty under Section 11AC is not imposable when duty and interest are paid prior to issuance of Show Cause Notice and no fraud or evasion is established. Issue 2: Validity and Maintainability of Show Cause Notice Issued Beyond One Year Relevant Legal Framework: The Central Excise Act prescribes limitation periods for issuance of Show Cause Notices. Section 11A(2B) also contemplates no need for notice if duty is paid before notice. The facts were known to the Department on 07.03.2008, but the Show Cause Notice was issued on 18.03.2010. Court's Interpretation and Reasoning: The Tribunal noted that the demand was raised beyond one year from knowledge of facts and after the duty payment. Thus, the Show Cause Notice was not maintainable as per Section 11A(2B) and limitation principles. Key Evidence and Findings: The Department's stock verification and detection of shortages occurred on 07.03.2008. The Show Cause Notice was issued more than two years later, on 18.03.2010. Application of Law to Facts: Since the duty was paid immediately after detection and before issuance of notice, and the notice was issued beyond one year, the Tribunal found the Show Cause Notice invalid for penalty proceedings. Treatment of Competing Arguments: The Revenue did not dispute the delay but contended penalties were justified due to admission of shortages. The Tribunal rejected this, emphasizing statutory safeguards. Conclusion: The Show Cause Notice issued after payment and beyond the prescribed period is not maintainable to impose penalties. Issue 3: Validity of Personal Penalty on Director under Rule 26 of Central Excise Rules and Rule 15 of CENVAT Credit Rules Relevant Legal Framework: Rule 26 of the Central Excise Rules, 2002 and Rule 15 of the CENVAT Credit Rules, 2004 empower imposition of personal penalty on officers or directors for contraventions involving CENVAT credit misuse or excise duty evasion. Court's Interpretation and Reasoning: The Tribunal held that since penalty on the company was not sustainable due to absence of mens rea and prior payment of duty, the personal penalty on the Director also could not be sustained. No evidence of wilful misstatement, fraud or suppression was brought against the Director personally. Key Evidence and Findings: The Director's statement admitted shortages but no evidence of personal culpability or intent to evade duty was found. Application of Law to Facts: The absence of fraud or evasion negates personal liability for penalty under the cited rules. Treatment of Competing Arguments: The Revenue supported personal penalty based on company's liability. The Tribunal rejected this, requiring independent proof of director's culpability. Conclusion: Personal penalty on the Director is not maintainable in absence of evidence of fraud or intention to evade duty. Issue 4: Sufficiency of Evidence from Stock Verification Based on Eye-Estimation Relevant Legal Framework: Stock verification for excise duty purposes requires reliable and accurate measurement of goods. Physical verification by weighment is standard; mere eye-estimation may not suffice. Court's Interpretation and Reasoning: The Tribunal observed that stock verification was conducted by eye-estimation without actual weighment. Despite this, the appellant accepted the shortages and paid duty. The Tribunal did not rely on the eye-estimation as conclusive evidence but noted absence of clandestine removal or fraud evidence. Key Evidence and Findings: Annexures to the Show Cause Notice recorded quantities based on eye-estimation. No weighment records or corroborative evidence were produced by Revenue. Application of Law to Facts: The lack of precise measurement weakened the Revenue's case for penalty. Acceptance and payment by the appellant further diminished the evidentiary value. Treatment of Competing Arguments: Revenue relied on detection of shortages; appellant challenged reliability of stock verification. Tribunal found appellant's acceptance and payment decisive. Conclusion: Stock verification based on eye-estimation without weighment is insufficient to establish mens rea or justify penalty where duty is paid. Issue 5: Existence of Mens Rea or Intent to Evade Duty Relevant Legal Framework: Penalty under Section 11AC requires proof of fraud, collusion, wilful misstatement, suppression of facts or contravention with intent to evade duty. Court's Interpretation and Reasoning: The Tribunal found no evidence of mens rea. The appellant's immediate payment of duty and acceptance of shortages indicated no intention to evade duty. Absence of clandestine removal or fraudulent conduct was emphasized. Key Evidence and Findings: Statements of company officials, payment of duty prior to Show Cause Notice, absence of concealment evidence. Application of Law to Facts: The statutory requirement of intent to evade duty was not satisfied. Treatment of Competing Arguments: Revenue argued admission of shortages sufficed for penalty; Tribunal disagreed, requiring mens rea. Conclusion: No mens rea or intention to evade duty was established; thus, penalty is not sustainable. 3. SIGNIFICANT HOLDINGS The Tribunal held:
Core principles established include the primacy of payment of duty prior to Show Cause Notice in negating penalty liability, the necessity of mens rea for penalty imposition, and the invalidity of penalty proceedings where statutory conditions under Section 11A(2B) are met. Final determinations were that penalties imposed on the appellant-company and its Director were set aside, the Show Cause Notice was not maintainable for penalty, and the appeals were disposed accordingly.
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