Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1478

Penalties imposed u/Rule 25 of CER, 2002 & u/Rule 13 of CCR, 2004

Case: COMMISSIONER OF CENTRAL EXCISE, KANPUR versus MINAKSHI CASTINGS
 
Citation: 2011 (274) E.L.T. 180 (All.)
 
Issue:- Penalties imposed under Rule 25 of Central Excise Rule, 2002 & Rule 13 of the Cenvat Credit Rule, 2002 – set aside – whether justifiable?
 
Brief Fact:- An affidavit of Sri Vipul Gupta, Assistant Commissioner, Central Excise Division, Jhansi has been filed stating that the order was served upon the  Appellant on 21-4-2006 and Central Excise Appeal has been filed under Section 35G of the Central Excise Act, 1944 on 18-10-06 i.e. within 180 days can be imposed. The Tribunal found that there was no evidence of any kind to support the findings of clandestine removal, not tallying with the physical stock.  The Tribunal relied upon the case of C.C.E. Delhi III v. Machino Mon-tell (I) Ltd. - 2004 (168) E.L.T. 466 (Tri.-LB) in support of its view that in such event no penalty is imposable. The appeal is thus within limitation. The defect is removed. . No one has appeared on behalf of respondent’s inspite of registered notice sent by the court, which has not returned either undelivered or unserved. The service is deemed to be sufficient.
 
Appellant’s Contention:- The Appellant has relied upon Union of India v. Rajasthan Spinning & Weaving Mills - 2009 (238) E.L.T. 3 (S.C.), and submits that the view taken in Union of India v. Dharmendra Textile Processors - 2008 (231) E.L.T. 3 (S.C.) has not been approved by the Supreme Court. The payment of the differential duty, whether before or after the show cause notice is issued, can alter the liability for penalty, the conditions for which are clearly spelled out in Section 11AC of the Central Excise Act.  Section 11AC of the Act authorizing levy of penalty, pre-supposes an intention to evade the duty, where any duty has not been levied, or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or rules made thereunder with intent to evade payment of duty, the person is liable to pay the duty as determined under sub-section (2) of Section 11A and shall also be required to pay penalty equal to the duty so determined.  
 
The Supreme Court in Union of India v. Rajasthan Spinning & Weaving Mills - 2009 (238) E.L.T. 3 (S.C.) (Para 19), held that it is clear that penalty under Section 11AC, as the word suggests, is punishment, for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section.
 
Reasoning of Judgment:- The Supreme Court in Union of India v. Rajasthan Spinning & Weaving Mills - 2009 (238) E.L.T. 3 (S.C.) (Para 19), held that it is clear that penalty under Section 11AC, as the word suggests, is punishment, for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means mentioned in the section. The Tribunal has found that there is no material or evidence of any kind to support the findings, that there was clandestine removal, which did not tally with the physical stock. In substance it was found that there was shortage of finished goods. The shortage of finished goods, by itself could not unless it is related to clandestine removal of finished goods for which there was no material evidence, infer evasion of excise duty, and thus no penalty can be imposed.
 
Decision:- 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