2011 (9) TMI 163 - AT - Central Excise

CENVAT credit wrongly taken and subsequently reversed - two appeals filed by the department and one by the assessee - show-cause notice invoked Rule 15 of the CENVAT Credit Rules, 2004 to penalize the party - original authority and the appellate authority were in favour of imposing penalty on the assessee albeit to different extents - show-cause notice did not purport to invoke sub-rule (2) of Rule 15 - appeals of the Revenue are liable to be dismissed - decided against the revenue.

Summary

Issues:
1. Liability of the assessee to pay interest under Section 11AB of the Central Excise Act on wrongly taken and subsequently reversed CENVAT credit.
2. Penalization of the assessee under Rule 15 of CENVAT Credit Rules, 2004 for wrong availment of credit.

Analysis:
1. The first issue revolves around the liability of the assessee to pay interest on the amount of CENVAT credit wrongly taken and later reversed. The counsel for the assessee expressed willingness to pay interest on the relevant amount from the date of wrong availment to the date of reversal. Consequently, the assessee's appeal was dismissed based on this submission.

2. The second issue pertains to the penalization of the assessee under Rule 15 of the CENVAT Credit Rules, 2004 for the wrong availment of credit. The show-cause notice invoked Rule 15 to penalize the party, with the original and appellate authorities differing on the extent of penalty. However, it was noted that neither the show-cause notice nor any lower authority orders specified the sub-rule being invoked.

3. The Departmental Representative argued in favor of invoking sub-rule (2) of Rule 15, which imposes a penalty in cases involving fraud, collusion, willful misstatement, suppression of facts, or contravention of Excise Act provisions with intent to evade duty payment. However, it was observed that the show-cause notice did not allege any of these elements against the assessee, indicating a lack of basis for invoking sub-rule (2) of Rule 15.

4. The judgment highlighted that the lower authorities imposed penalties without proper grounds, as the show-cause notice did not support invoking sub-rule (2) of Rule 15. Consequently, both appeals by the Revenue were deemed liable for dismissal. The decision was made based on the absence of allegations related to fraud, collusion, willful misstatement, suppression of facts, or contravention of provisions to evade duty payment against the assessee.

In conclusion, the judgment addressed the issues of interest liability on wrongly taken CENVAT credit and penalization under Rule 15, emphasizing the importance of proper invocation of sub-rules and the necessity for allegations to support penalties imposed.