2008 (12) TMI 575 - AT - Central Excise

Summary

Issues:
1. Admissibility of Cenvat credit for inputs received.
2. Demand of duty for goods cleared for export without proof of export.
3. Imposition of interest and penalty by the Dy. Commissioner.
4. Appeal against the demand of interest and penalty.
5. Interpretation of Section 11AB regarding payment of interest.

Analysis:

Issue 1: Admissibility of Cenvat credit for inputs received
The respondent had taken credit of Rs. 7,71,088/- for inputs received, which was considered inadmissible by the CERA audit. The amount was reversed after the audit report. A portion of this amount related to a period prior to Feb., 2001. The Commissioner (Appeals) set aside the demand of interest and penalty, stating that no mens-rea was involved as the credit was not utilized, and duty was paid before the show cause notice. The Tribunal agreed that interest and penalty were not warranted in this scenario.

Issue 2: Demand of duty for goods cleared for export without proof of export
Duty amounting to Rs. 1,38,067/- was demanded for goods cleared for export without proof of export. The appellant paid this amount before the show cause notice, which was issued for demanding interest and penalty. The Tribunal ruled that duty and interest were payable for goods cleared without proof of export, but no penalty could be imposed on the manufacturer for the default of the merchant exporter.

Issue 3: Imposition of interest and penalty by the Dy. Commissioner
The Dy. Commissioner imposed interest and penalty on the wrongly availed excess Cenvat credit and duty amount. The Commissioner (Appeals) set aside this demand, noting the absence of mens-rea and the voluntary payment of the amount before the show cause notice. The Tribunal partially allowed the appeal, upholding interest only on specific amounts after the amendment of Section 11AB.

Issue 4: Appeal against the demand of interest and penalty
The Revenue contended that interest was payable as soon as the credit was wrongly taken, regardless of mens-rea. They argued that the appellant did not pay the amount voluntarily but only after being alerted by the CERA audit. The Tribunal held that interest was required to be paid on specific amounts post-amendment of Section 11AB, without the need to establish mens-rea.

Issue 5: Interpretation of Section 11AB regarding payment of interest
The Tribunal interpreted Section 11AB, stating that interest was required to be paid post-amendment without establishing mens-rea. Interest was to be paid on amounts voluntarily paid or specifically determined by the Assistant Commissioner. The Tribunal allowed the appeal partly, directing payment of interest on certain amounts but no penalty imposition.

This detailed analysis of the judgment provides insights into the various issues addressed by the Tribunal concerning the admissibility of Cenvat credit, demand of duty for goods cleared for export, imposition of interest and penalty, appeal against the demand, and the interpretation of Section 11AB regarding payment of interest.