Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Laws/2010-11/1014

No intention to evade payment of duty, should a person be penalized?
Case: CCE & C v/s Saurashtra Cement Ltd 
 
Citation: 2010 (103) RLTONLINE 169 (GUJ.)
 
Issue:- When the assessee has no intention to evade payment of duty, should he be penalized?
 
Brief Facts:- Respondent- assessee has cleared excisable goods without payment of duty in time. The delay in payment of duty was about 25 to 56 days. Department issued show cause notices demanding duty under Section 11AC of the Central Excise Act, 1944 along with interest under Section 8(3) of the Act and penalty under Rule 25 of the Rules was proposed to be imposed. The Adjudicating Authority confirmed the duty demand was confirmed with interest under Rule 8(3) and also imposed penalty of equal amount of duty demanded under Rule 25 of the Rules.
 
In appeal, the Commissioner (Appeals) confirmed the demand of duty as well as the interest but reduced the penalty to Rs. 5 lakhs in one of the appeals. In all other matters, the Commissioner (Appeals) confirmed the orders passed by the Adjudicating Authority.
 
In further appeal, the Tribunal considering Rule 25 observed that Rule 25 provides for imposition of penalties which shall not exceed the duty on the excisable goods, when there is contravention of the nature referred to in clause (a), clause (b), clause(c) or clause(d). The Tribunal found that clause (a) of Rule 25 refers to removal of excisable goods in contravention of any of the provisions of the Rules. When goods were removed, no excise duty was required to be paid at that point of time. As such, it cannot be said that the contravention of the nature mentioned in the said clause has been committed by the assessee. Clause (b) is to the effect that the manufacturer does not account for any excisable goods manufactured by him. The said clause does not stand contravened in as much as the goods were duly reflected in the statutory records. Similarly, clause(c) does not stand contravened in as much as the assessee has not manufactured goods without applying for registration. Clause (d) refers to contravention of any of the provisions of the Rules with intent to evade payment of duty. Excisable goods were entered in records, cleared on Central Excise invoices and duty was also paid subsequently, though belatedly along with interest. As such, the said clause (d) is also not contravened. After analyzing and examining all these four sub-clauses of Rule 25, the Tribunal held that the invocation of Rule 25 for imposition of penalty for delayed deposit of duty is not in accordance with law.
 
The Tribunal relied upon the judgments given in M/s Condor Power Products P. Ltd., [2007 (79) RLT 124 (CESTAT-Del.), M/s Automotive India (Raipur) Pvt. Ltd., [2006 (77) RLT 140 (CESTAT Del.)] and CCE, Allahabad v/s R.K. Cigarettes (P) Ltd., [2007 (79) RLT 804 (CESTAT – Delhi)]. The Tribunal reduced the penalty to Rs. 5,000/- in all cases.
 
Against this order, Revenue is in appeal before the High Court.
 
Appellant’s Contention:- Revenuesubmitted that the Tribunal seriously erred in appreciating the provisions of Rule 8(1) of the Central Excise Rules, 2002, while passing the impugned order and therefore, the impugned orders are bad and illegal and are required to be quashed and set aside.
 
Revenue has further submitted that the respondent herein had defaulted in payment for more than a month and therefore, the respondents have violated the provisions of Rule 8(1) and 8(3) of the Rules. It was further submitted that the duty liability stands discharged only when an assessee pays the amount by the specified date. Further, a grace period of a month is provided in the Rules to pay the duty along with the interest after the specified date. The respondents have not followed either of the provisions of Rule 8 and have cleared the said goods without payment of duty, and thereby contravened the said Rule and attracted the exemplary penalty.
 
Revenue has further submitted that when the goods are deemed to be cleared without payment of central excise duty, the penalty provision under the Central Excise law is applicable.
 
It is submitted that the decisions relied upon by the Tribunal were not applicable to the facts of the present case.
 
Revenue has further submitted that, in the present case, the respondents appears to be habitual offenders and are well aware that they would not be able to fulfill the obligations for payment of duty by the due date and hence, the respondents have contravened the provisions of Rule 25.
 
Respondent’s Contention:- Respondent contended that the Tribunal had in its order had discussed each clause of Rule 25 and had concluded that there was no contravention of any of these clauses and held that invocation of Rule 25 for imposition of penalty for delayed deposit of duty is not in accordance with law. Respondent referred to the provisions of Section 11AC and submitted that “Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any willful mis-statement or suppression of facts” in these cases only, penalty shall be leviable equal to the duty so determined. Respondent submitted that in their case, there is no allegation that there was an intention to delay the payment. It is only because of the stringent financial circumstances, the payment was delayed, otherwise the duty was paid along with interest @ 24%.
 
They relied upon the judgments given in Commissioner of Central Excise, Guntur v/s Andhra Cements Limited [2007 (216) ELT 362 (A.P.)], Supreme Industries Ltd. v/s C.E.S.T.A.T., New Delhi [2007 (214) ELT 187 (M.P.)], Superintendent of Central Excise v/s Sance Pharmaceuticals [2009 (247) ELT 136 (Ker.)] andUnion of India v/s Rajasthan Spinning & Weaving Mills [2009 (238) ELT 3 (SC)].
 
Reasoning of Judgment: - The High Court observed that the provisions of Rule 25 are subject to the provisions of Section 11AC of the Central Excise Act, 1944. And for the purpose of invoking Section 11AC, 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 High Court relied upon the judgment given in the case of Commissioner of C. Ex. Guntur v/s Andhra Cements Limited (Supra) wherein it was held that there should be an element of intention to evade payment of duty for imposing penalty under Rule 25. Evasion of payment of duty is not sufficient to impose penalty on a producer or manufacturer.  
 
Reliance was also placed on Superintendent of Central Excise v/s Sance Pharmaceuticals (Supra) wherein it was held that imposition of penalty should be preceded by a finding that there was a willful default as such.
 
Reliance was also placed on Supreme Industries Limited v/s C.E.S.T.A.T., New Delhi  wherein it was held that enforcement of penal clause to be done subject to strict proof of intention to evade payment of duty. Similarly, reliance was placed on the judgments given in Union of India v/s Rajasthan Spinning & Weaving Mills [2009 (238)E.L.T. 3 (S.C.)], Commissioner of Ce. Ex., Bhavnagar v/s Saurashtra Chemicals Limited [2007 (212) E.L.T. 7 (S.C.)] and inK.R.C.S. Balakrishna Chetty and Sons & Co. v/s The State of Madras [A.I.R. 1961 SC 1152].
 
Accordingly, on facts of the present case the High Court held that there was no intention on the part of the respondent assessee to evade any payment of duty. It is only because of stringent financial condition, that the duty could not be paid in time and as soon as liquidity was available, duty was paid along with interest. The Tribunal rightly concluded that penalty could not be levied under Rule 25 of the Rules and for the alleged default, the penalty was restricted to Rs.5000/- in each matter under Rule 27 of the Rules. 
 
No substantial question of law involved in the appeal.
 
Judgment:- Appeal dismissed.
 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com