TMI Blog2010 (11) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the part of the impugned order disallowing the abatement of Central Excise duty from the price charged is not correct and the matter has to be remanded to the adjudicating authority for re-computing the duty demand by treating the price charged by the Appellant as cum-duty price and determining assessable value after abating the Central Excise duty - matter on remand. Whether Penalty u/r 25(1) of CER, 2002 is imposable on the Appellant? - Held that: - From the language of clause (a) (b) and (c) of Rule 25(1), it will be seen that for imposition of penalty for contraventions mentioned in these clauses, “intention to evade the payment of duty” is not required and mere contravention of the provisions of the Central Excise Rules or of the notification issued under the rule is sufficient for attracting penalty - Since in this case, the goods were cleared by the Appellant during April 2004-Jan. 2005 paid without discharging duty liability and thereby contravening the provisions of Rules 4, 6 & 8 of the CER, and this contravention has not been disputed, penalty under Rule 25(1)(a) would be attracted - penalty upheld. Appeal disposed off - part matter on remand and part ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest of ₹ 30,858/- in September, 2005, the same was appropriated towards the demand. The Deputy Commissioner also imposed a penalty of Rs. one lakh on the Appellant under Rule 25 of the Central Excise Rules, 2002. 1.3 On Appeal to Commissioner of Central Excise (Appeals), the Deputy Commissioner s order was upheld vide Order-in-Appeal No. 39-C.E./Noida/06 dated 10-2-2006. It is against this order of Commissioner of Central Excise (Appeals) that the present appeal has been filed. In the appeal filed by the Appellant to the Tribunal, the lower authority s findings that they were not eligible for SSI exemption under Notification No. 8/2003-C.E. during 2004-05 have not been challenged. The Appellants have challenged the imposition of penalty, pleading that availment of SSI exemption during 2004-05 for which they were not eligible, was due to their ignorance of amendment of the notification and also the denial of cum-duty benefit in terms of Hon ble Supreme Court s judgment in the case of Shree Chakra Tyres Ltd. reported in 2002 (142) E.L.T. A279 (S.C.). 2. None appeared for the Appellant, though the notice for hearing had been issued to them. In view of this, in accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sable value declared in ER-I returns is always exclusive of all the taxes; and (b) The appellant have not produced any evidence that the assessable value declared by them in ER-I returns includes excise duty also. According to the learned DR, the findings of the Commissioner (Appeals) are in accordance with the ratio of Hon ble Supreme Court s judgment in the case of Amrit Agro Industries Ltd. v. CCE, Ghaziabad (supra), wherein with reference to the provisions of Section 4(4)(d)(ii) of the Central Excise Act, 1944, as it stood during the period prior to 1-7-2000, it was held that unless it is shown by the manufacturer that the price of the goods includes excise duty payable by him, no question of exclusion of duty element from price for determination of assessable value would arise and that one cannot go by general implication that the wholesale price would always mean cum-duty price, particularly, when the assessee had cleared the goods during the relevant years by availing an exemption notification. 5.1 Sub-section (4)(d)(ii) of old Section, as it stood during the period prior to 1-7-2000 and sub-section (3)(d) of new section based on transaction value concept, as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... realised by the assessee has to be treated as including excise duty and the assessable value has to be determined after abating the element of duty from the sale price. The Commissioner (Appeals), while deciding this point against the Appellant, has not considered the provisions of Explanation to Section 4(1) and hence the part of the impugned order disallowing the abatement of Central Excise duty from the price charged is not correct and the matter has to be remanded to the adjudicating authority for re-computing the duty demand by treating the price charged by the Appellant as cum-duty price and determining assessable value after abating the Central Excise duty. 6. Coming to the question of penalty, the same has been imposed under Rule 25(1) of the Central Excise Rules, 2002. Rule 25(1) of the Central Excise Rules reads as under :- Subject to the provisions of Section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse or a registered dealer,- (a) removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or (b) does not account for any excisable goods pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the notification issued under rules with intent to evade the payment of duty, if any or non-payment, non-levy, short payment, short-levy or erroneous refund of duty by reasons of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of Central Excise Act, 1944 or of the rule made thereunder with intent to evade the payment of duty. From the language of clause (a) (b) and (c) of Rule 25(1), it will be seen that for imposition of penalty for contraventions mentioned in these clauses, intention to evade the payment of duty is not required and mere contravention of the provisions of the Central Excise Rules or of the notification issued under the rule is sufficient for attracting penalty. These contraventions are the wrongs of strict liability in which mens rea is not required and mere contravention will attract penalty. On the other hand, for imposition of penalty for the contraventions of the type mentioned in clause (d) of Rule 25(1) or for the cases of short-levy, short-payment, non-levy, non-payment or erroneous refund of duty due to fraud, collusion, wilful mis-statement, suppression of facts etc., as is clear f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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