Whether the assessee is entitled to take cenvat credit on the basis of supplementary invoice of the manufacturer in case additional duty of excise is paid suo motu on receipt of the show cause notice alleging wilful mis-statement or suppression of facts or contravention of the provisions of the Central Excise Act or the Rules with intent to evade duty invoking proviso to Sub-Section (1) of Section 11A of the Act?
CC&CE Vs. Beekay Enterprises (CESTAT Delhi) – Penalty can be imposed within the framework of Section 11AC of the Act. Rule 25 of the Central Excise Rules which deals with penalty also can be applied subject to provisions of Section 11AC. As indicated above, penalty can be imposed when non payment or short payment of duty etc. was actuated by fraud, collusion, wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or rules made thereunder “with intent to evade payment of duty”. Even if a case of suppression of facts or contravention of any provision were made out, it is clear that suppression or contravention per se would not justify imposition of penalty unless it was made intentionally in order to evade payment of duty.
Even where a minimum penalty is prescribed, the authority has discretion to impose a lesser penalty depending on the facts and circumstances of the case. The amount mentioned in Rule 173Q(1) of the 1944 Rules or Rule 25(1) of the 2002 Rules is the maximum, and not the minimum. The amount shall not exceed the duty determined; if it is more than rupees five thousand, or rupees five thousand if the duty determined is less than rupees five thousand.
The assessment under the Central Excise law in the name of partnership firm will virtually, for all purposes, be assessment of the partners of such firm who will be jointly and severally liable for the duty liability that was incurred during the currency of their partnership venture of manufacturing excisable goods. The decisions of this Tribunal taking a contrary view are no longer good law and will stand overruled.
The claim of the appellants for refund of Education Cess was based on the Notification bearing no. 56/2002, dated 14-11-2002, which provided for exemption to the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (other than the goods specified in Annexure I to the Notification), from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the three Acts, namely, The Central Excise Act, 1944; The Additional Duties of Excise (Goods of Special Importance) Act, 1957; and The Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, as was equivalent to the amount of duty paid by the manufacturer of goods, other than the amount of duty paid by utilization of Cenvat credit.
