2010 (6) TMI 412 - AT - Central Excise

Penalty cenvat credit input removed as such - Authority has imposed equivalent amount of penalty on the appellant for non-reversal of the Special Additional Duty when the inputs were cleared as such - amount involved in this case is Rs. 45,106/- and if the contention of the assessee that they have paid Rs. 1.41 crores for the preceding three years through PLA - it cannot be said that there was an intention to evade payment of duty by not debiting the amount of Special Additional Duty when the goods were cleared as such penalty set aside

Summary

Issues:
- Appellant availed Cenvat credit on imported inputs but did not reverse the Special Additional Duty when goods were cleared 'as such.'
- Imposition of penalty under Rule 15 of Cenvat Credit Rules, 2002 for non-reversal of Special Additional Duty.

Analysis:
- The appeal challenged the imposition of an equivalent penalty on the appellant for not reversing the Special Additional Duty when goods were cleared 'as such.' The appellant availed Cenvat credit on imported inputs, including the Special Additional Duty, but failed to reverse the amount when the goods were cleared. The Adjudicating Authority imposed a penalty equivalent to the duty amount under Rule 15 of the Cenvat Credit Rules, 2002.

- The appellant's counsel argued that the credit taken for the Special Additional Duty was not wrongful but an inadvertent mistake. The appellant rectified the error promptly upon detection and paid the interest due on the amount. The counsel highlighted the substantial duty payments made through PLA by the appellant for the preceding years, indicating no intent to evade duty payment.

- The Departmental Representative contended that the reversal of the amount through PLA was not voluntary but done after being pointed out during a surprise check by Preventive Officers. The Department argued that the appellant was liable for penalty under Rule 15(2) of the Cenvat Credit Rules for non-reversal of the Special Additional Duty.

- Upon reviewing the submissions and records, the Member observed that for penalty imposition, there must be evidence of wrongful utilization due to fraud, collusion, willful misstatement, or intent to evade duty payment. The Member noted the amount involved and the appellant's substantial duty payments through PLA, indicating no deliberate evasion. Referring to a relevant case law, the Member concluded that the penalty imposition was not justified in this scenario.

- Citing a previous decision by the Tribunal, the Member found in favor of the appellant, setting aside the penalty imposed by the adjudicating authority. The Member allowed the appeal to the extent of challenging the penalty before the Tribunal, ruling against the equivalent penalty imposed under Rule 15 of the Cenvat Credit Rules, 2002.