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Tulsyan NEC Limited and Ors. v. Commissioner of Central Excise - (Customs, Excise and Service Tax Appellate Tribunal) (04 Nov 2016)

Penalty not imposable in absence of determination of duty



Appellant is a dealer for dealing in plastic granules and also as have manufacturing unit for manufacturing PP bags. During course of audit, it was noted that there were some discrepancies in the stock account with actual quantity of granules stored. Show-cause notice was issued as to show why penalty should not be imposed to extent of CENVAT credit under provisions of Section 11AC of Central Excise Act, 1944 read with Rule 25. Apart from that a show-cause notice was also issued to the Director asking him to show-cause as to why penalty should not be imposed on him under Rule 26. Additional Commissioner vide Order-in-Original imposed penalty under Rule 25 read with Section 11AC. Further a penalty was imposed on Appellant-Director. Being aggrieved by Order-in-Original, Appellant preferred an appeal before Commissioner and Commissioner (A) upheld Order-in-Original.

Tribunal found that, in impugned order, penalty has been imposed under Rule 25 read with Section 11AC without determination of duty which is not permissible in law. As in this case, no duty was determined as per provisions of Section 11A(10) which is required to be determined if penalty under Section 11AC is to be imposed. Further, Revenue has not investigated case properly and no evidence has been brought on record which can prove allegation that Appellant was issuing cenvatable invoices without supply of material. Present case is not a case of non-payment, short-payment or non-levy or short-levy of duty, therefore imposition of penalty under Rule 25 read with Section 11AC of Central Excise Act is not warranted. Therefore, in view the facts, imposition of penalty under Rule 25 read with Section 11AC is not imposable in absence of determination of duty. Therefore penalty under Rule 25 was set aside.

Since, Director has admitted that they have not maintained the record properly and there is inter mixing of material of one grade with another grade and they have not been able to establish one to one correlation of the invoices and this shows that they have not maintained proper statutory records and therefore they are liable to be penalised under Rule 27 instead of Rule 25 & 26. Therefore, Tribunal imposed penalty.

Relevant : Section11A(10), 11AC of Central Excise Act, 1944


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