Whether Tribunal has power to extend the benefit of reducing the penalty to 25%?

PJ/CASE LAW/13-14/2072

Case:- COMMR. OF C. EX. AHMEDABAD-III Versus RATNAMANI METALS AND TUBES LTD.

Citation:-2013 (296) E. L. T. 327 (Guj.)

Brief Facts:-The assessee has engaged in the manufacture of MS Tubes & pipes, availed the benefit of Cenvat credit on the inputs/capital goods used for manufacture and clearance of dutiable and exempted finished goods. A show cause notice was issued for recovery of wrongly availed Cenvat credit amount of Rs. 41,84,290/- under Rule 12 of the Cenvat Credit Rules, 2002 read with proviso to Section 11A(1) of the Central Excise Act, 1944 and Rule 13 of the Cenvat Credit Rules, 2002 read with Section 11AC of the Central Excise Act, 1944.
Order-in-Original confirmed the amount of demand and imposed penalty. Aggrieved by such Order-in-Original dated 23rd March 2006, the assessee approached the Commissioner, Central Excise (Appeals) which also rejected the appeal on 19th September 2006.
When CESTAT was approached, it decided the appeal on 31st May 2012. It held against the respondent on merit by holding that it cannot claim the benefit of Rule 6 by debiting the amount equal to 8% of the value of the exempted goods as also cannot avail the CENVAT credit on the HR coils received by them which were to be exclusively used for manufacturing pipes by claiming exemption under Notification No. 6/2006-C.E.
The Tribunal, however, while concurring with the findings of the first appellate authority on limitation, on imposition of penalty, directed the respondent to pay the differential duty within thirty days from the date of its order with interest and in that event, gave an option of paying penalty equivalent to 25% of the amount of duty liable, confirmed and upheld by the Tribunal, following the decision of this Court in case of M/s. Akash Fashion Limited [2009 (239) E.L.T. 439 (Guj.)]. Aggrieved by the said order of the Tribunal extending the benefit of reduced penalty, the revenue is in appeal before the High Court on the following substantial question of law:-
1. Whether CESTAT is right in holding that the benefit of reduced penalty to the extent of 75% of the duty liability is available to the assessee as per the provisions of Section 11AC of the Central Excise Act, 1944, when the duty, interest and the penalty to the extent of 25% of the amount of the duty was not paid within 30 days of the order of the adjudicating authority?
2. Whether CESTAT can award such option to the assessee when Section 11AC of the Central Excise Act, 1944 is clear and provides no such scope for the Tribunal?

Reasoning of Judgment:We have heard learned advocate Ms. Manisha L. Shah for the Department. She vehemently submitted that such leniency granted in payment of penalty was acting contrary to the very object of the law and therefore, she further urged this Court to quash and set aside the order of the Tribunal permitting payment; as directed in the order impugned. She also further urged that the decision of this Court has not been rightly construed by the Tribunal and at the appellate stage, such an offer of reduction of penalty could not have been made.
It is required to be noted that at no stage, either in the Order-in-Original or in the order of Commissioner (Appeals), the respondent has been given the benefit of payment of reduced penalty. Instead of giving independent reasons on the issue, it would be appropriate to refer to the decision of this Court rendered in case of Commissioner of Central Excise & Customs, Surat-I v. M/s. Krishnaram Dyeing & Finishing Works [OJMC No. 11/2013 : 24-1-2013] dealing with identical question of law, after discussing various case laws, concluded thus -
"As can be noted from the decisions mentioned hereinabove, this Court has followed a consistent view that the assessee is required to be given the option by the adjudicating authority where he is asked to pay a duty demand with interest and 25% of penalty within 30 days from the date of adjudication of the order and in such case, he would be liable to pay only 25% of the penalty. Whenever such option had not been given, the remand had been made to the concerned authorities. And period of 30 days is being considered, if in case option is not given earlier, from the date of availing such option.”
In the present case also, the remand had been made to the Tribunal and in the order of remand, it was also directed to consider the provision of section 11 AC and the Tribunal had specifically noted that none of the two authorities below had availed any option to the assessee to pay duty demand with interest and penalty of 25% of the duty within 30 days from the date of adjudication, and therefore, the Tribunal in its order impugned maintained that the case of the assessee is squarely covered by the explanation to Section 11AC. The Tribunal also noted that the duty determined under Section 11AC (2) was subsequent to the year 2000 and, therefore, the case would be covered by the explanation to Section 11AC of the Central Excise Act.
When no option was given by any of the adjudicating authorities after determination for payment of duty, interest and penalty of 25% of the duty, what all Tribunal had done, pursuant to the direction in remand order, was to avail option to the respondent and this was in consonance with the ratio laid down by the Court time and again.
This Tax Appeal, for the aforementioned reasons, stands dismissed.

Decision:-Appeal dismissed.

Comment:- The crux of this case is that when the assessee has not been given the option of payment of duty along with interest and 25% penalty within a period of 30 days from the date of passing of the adjudication order, such benefit may be extended by the Tribunal while remanding the matter to the adjudicating authority. This view is also confirmed by the decision given by the Gujarat High Court in the case of M/s. Krishnaram Dyeing & Finishing Works.

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PJ/CASE LAW/13-14/2072

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