2010 (12) TMI 442 - HC - Central Excise

Evasion of duty - Department received information about evasion of duty by the petitioner and issued a show cause notice alleging that it was availing CENVAT credit, without actual receipt and use of the same in manufacturing of final product - As per proposal of the Chief Commissioner, the assessee availed credit on G.C. Sheets which were not used for manufacturing of goods - This proposal was based on investigation and the statements - The Chief Commissioner gave personal hearing to the representative of the petitioner - Before passing of order, the Member of the Board also considered the representation and comments of the petitioner. It cannot be held that the impugned order is without any basis or material or justification - The conclusion is that the allegation was, prima facie, established - Having regard to the nature of power, the Board is not expected to finally adjudicate on the matter - There was no occasion for further or enhanced restrictions in the absence of any fresh material or circumstance - There is no discussion for imposing higher restrictions in the impugned order over and above - To this extent, contention on behalf of the petitioner has to succeed - Hence, partly allow this petition and set aside the impugned order

Summary

Issues:
Challenge to order dated 26-11-2010 under Rule 12CC of the Central Excise Rules, 2002 read with Notification No. 32/2006-C.E. (N.T.), dated 30-12-2006.

Analysis:
The petitioner, a manufacturer of various items including Telecom Prefabricated Shelter/Panels, received a show cause notice alleging evasion of duty due to improper availing of CENVAT credit. The Chief Commissioner recommended action under Rule 12CC, leading to an order by the Board withdrawing certain facilities and imposing restrictions on duty payment and CENVAT credit utilization. The petitioner challenged this order, leading to a previous judgment directing a fresh order considering the petitioner's viewpoint. The petitioner denied the allegations and made representations.

The subsequent order dated 26-11-2010 reiterated restrictions on duty payment and CENVAT credit utilization, extending them to May 2011. The petitioner contended that the order was unjustified as no evasion or wrongful credit availing occurred. The Court considered the material supporting the allegations, including statements from involved individuals, and found prima facie justification for the order. However, it noted the lack of fresh material to warrant increased restrictions beyond the previous order.

The Court partially allowed the petition, setting aside the order's enhanced restrictions beyond the initial order. It clarified that its observations wouldn't impact future adjudication or the passing of new orders in compliance with the law. The judgment emphasized the need for justification and fresh material to impose additional restrictions beyond the initial order, ensuring fairness and due process in excise duty matters.