2004 (5) TMI 348 - AT - Central Excise

Summary

Issues:
1. Appeal against order of Commissioner (Appeals) rejecting appeal against Additional Commissioner's order.
2. Allegation of clearing inputs without payment of duty and issuing debit notes without reducing credit.
3. Challenge to demand based on absence of suppression or intention to evade.
4. Excess credit taken without disclosure leading to duty demand.
5. Imposition of penalty under Section 11AC for wrongful credit utilization.
6. Reduction of penalty amount from equivalent to Rs. 5,000.

Analysis:
1. The appeal before the Appellate Tribunal CESTAT, Mumbai was filed against the order of the Commissioner (Appeals) rejecting the appeal made by the appellants against the order passed by the Additional Commissioner. The appeal pertained to the confirmation of a demand for duty amounting to Rs. 32,115/- and an equivalent penalty against the appellants.

2. The allegations against the appellants included the clearance of inputs valued at Rs. 8,850/- without payment of duty, as well as issuing debit notes to suppliers without proportionately reducing the credit of Rs. 30,555/- for input shortages. The demand was confirmed by invoking a larger period of limitation, prompting the appellants to challenge the demand.

3. Despite the absence of the appellants during the proceedings, the Departmental Representative (DR) supported the orders of the lower authorities. The main contention raised by the appellants was the lack of suppression or intention to evade, as the duty had been paid before the issuance of the show cause notice. They argued that the proceedings were related to the recovery of excess credit taken, not the recovery of duty under Section 11AC.

4. The Tribunal observed that the appellants had indeed taken excess credit without due disclosure to the authorities. The failure to disclose this fact until the issuance of debit notes indicated an intention to evade. The Tribunal held that the duty demand was justified based on these findings.

5. Regarding the imposition of penalty under Section 11AC for wrongful credit utilization leading to the clearance of finished goods on short payment, the Tribunal acknowledged the evasion but decided to reduce the penalty amount from the equivalent to a sum of Rs. 5,000 considering the circumstances.

6. Consequently, the Tribunal upheld the duty demand while reducing the penalty amount to Rs. 5,000, thereby rejecting the appeal on other grounds.