2007 (4) TMI 539 - AT - Central Excise

Summary

Issues:
Appeal against order upholding duty rate confusion, excess credit taken, revenue neutrality claim, legal correctness of Commissioner's order, penalty setting aside.

Analysis:
The appeal involved a dispute regarding the confusion over the applicability of duty rate reduction on man-made fabrics under Chapter heading 5406.22 of CETA, 1985. The appellant contended that due to uncertainty, they paid duty at a higher rate initially, then reverted to the reduced rate, and claimed deemed credit under Notification No. 6/2002-C.E. The issue arose when consignments were cleared to domestic and export markets, with varying duty rates applied. The original authority alleged that by paying excess duty, the appellant enabled merchant exporters to claim higher rebates, leading to a demand for recovery of extra deemed credit taken in March 2003. The Commissioner (Appeals) upheld the duty recovery but set aside the penalty.

The authorized representative argued that the appellant did not intend to underpay duty or claim excess credit, attributing the discrepancies to the confusion over the duty rate applicability. They asserted that the higher duty paid for certain consignments, even for domestic sales, was not claimed as a refund, and the department did not object to these transactions. It was emphasized that the duty paid for consignments to merchant exporters was eligible for rebate, resulting in a revenue-neutral scenario according to the appellant.

The Departmental Representative contended that the duty payable for March 2003 was unequivocally 10%, and any excess credit taken should be recoverable through a show cause notice within the prescribed time limit. The Commissioner's order was deemed legally correct, considering the duty rate discrepancy and the recovery of excess credit within the statutory limitations.

Upon considering the arguments, the Tribunal found that the duty payable for the fabrics in March 2003 was indeed 10%, contrary to the appellant's assertion of revenue neutrality. The Tribunal rejected the appellant's stance of adopting a 12% duty rate and taking higher credit, deeming it erroneous. The excess deemed credit taken was held recoverable under Rule 13 of Cenvat Rules. Consequently, the Commissioner's decision to confirm the recovery of the erroneous credit was deemed legally sustainable, while the penalty had already been set aside. The appeal was thus rejected.