2011 (6) TMI 31 - AT - Central Excise

Penalty and interest - Availing excess credit over and above the actual duty paid - The duty amount paid by M/s. CPCL to the exchequer is less than the amount indicated in the invoice issued by M/s. IOCL, the appellants are not entitled to take the entire amount as credit as the law provides credit to be taken only to the extent of duty paid - Held that the appellants are not at fault but their supplier M/s. IOCL is responsible for indicating higher amount of duty in the invoice than what was actually paid by M/s. CPCL - Under the circumstances, the excess amount of credit taken by the appellants over and above the actual duty paid to the exchequer by M/s.CPCL requires to be made good by the appellants along with interest on the same. As regards the penalties imposed on the appellants,held that in the circumstances of the case since M/s. IOCL were at fault and they have already been penalized for the same as submitted by the revenue, there is no justification for imposing penalty on the appellants.

Summary

Issues:
1. Incorrect credit taken by the appellants based on the invoice received from the supplier.
2. Discrepancy in duty amount indicated in the invoice by the supplier compared to the actual duty paid.
3. Penalties imposed on the supplier and the appellants for the irregularities.

Analysis:
1. The appellants received furnace oil from M/s. Indian Oil Corporation Ltd. (IOCL) and took credit of the duty amount reflected in the invoice. The appellants argue they did not commit any irregularity. However, the Department contends that IOCL, not being the manufacturer, obtained the goods from M/s. CPCL and sold them to the appellants. The issue arises as IOCL did not indicate the actual duty paid by CPCL on the invoice, resulting in the appellants taking excess credit.

2. The Department imposed penalties on IOCL for passing on excess credit, and penalties were also imposed on the appellants for not disclosing the excess credit availed within the normal period. The appellants cited case laws where more duty than applicable was paid, allowing credit for the actual duty paid. However, in this case, the credit taken exceeded the actual duty paid by CPCL. The appellants were not at fault, but IOCL was responsible for the incorrect invoicing, leading to the appellants taking Rs.17,073/- excess credit, which must be repaid along with interest.

3. The Tribunal upheld the demand for duty and interest but set aside the penalties on the appellants. Since IOCL was at fault and penalized, there was no justification for penalizing the appellants. The appellants were directed to recover the excess credit amount from IOCL. The judgment partly allowed the appeal by setting aside the penalties on the appellants while upholding the duty and interest demands.