2007 (11) TMI 478 - AT - Central Excise

Summary

Issues:
Appeal against Commissioner (Appeals) order, denial of Cenvat credit, imposition of penalty, settlement under KVSS, re-sale of rejected consignments, jurisdiction of Commissioner (Appeals) post settlement.

Analysis:
The case involves an appeal against the order of the Commissioner (Appeals) regarding the denial of Cenvat credit and imposition of a penalty. The appellant, having a factory in Surat and a branch office in Ahmedabad, cleared consignments of steel articles from Surat, some of which were rejected by consignees and re-sold at the Ahmedabad premises. The Assistant Commissioner proposed denying Cenvat credit, but later allowed it with a penalty. The appellant appealed against the penalty, settled under KVSS by paying 50% of the penalty, leading to the withdrawal of the appeal. Subsequently, the department appealed against the dropping of the duty demand, which the Commissioner (Appeals) allowed.

The appellant argued that the department's appeal should not have been entertained post the penalty settlement under KVSS, citing Section 92 of the Finance Act, 1988. The Tribunal noted that both the appellant and the department had filed appeals against the same original authority order. The Tribunal opined that since the dispute was settled under KVSS, the Commissioner (Appeals) should not have reopened the issue in the department's appeal.

The Tribunal observed that the rejected consignments, instead of being returned to the factory for resale, were received at the branch office, a registered dealer under Central Excise. While it was acknowledged that the credit was wrongly passed on, no action was shown to have been taken against those utilizing the credit. Consequently, the Tribunal allowed the appeal in favor of the appellant.

In conclusion, the Tribunal found that the settlement under KVSS precluded the reopening of the dispute by the Commissioner (Appeals) in the department's appeal. The case highlighted the importance of following proper procedures in dealing with rejected consignments and Cenvat credit issues under Central Excise regulations.