2010 (9) TMI 805 - HC - Central Excise

Duty and penalty - respondent cleared their goods on payment of duty @ 20% ad valorem during the month of March, 1997, though rate of duty on the appellant s products was reduced from 20% to 18% from March, 1997 - appellant took the credit of the duty excess paid - adjudicating authority confirmed the duty and imposed penalty on the ground that the appellant cannot take credit of the duty paid in excess on their own and instead should have filed refund claim under Section 11B of the Act Held that - Tribunal, considering the Chartered Accountant s certificate produced by the assessee, according to which the assessee did not receive payment in excess of 18% duty, as also the certificate given by the assessee customer that they have not paid in excess of the duty @ 18% nor they have availed the credit in their Modvat record in excess of the duty @ 18%, order set aside, no question of law, much less any substantial question of law, as proposed by the appellant, arises for adjudication of this appeal. The appeal is without any substance, the same deserves to be dismissed and is, accordingly, dismissed at the admission stage itself.

Summary

Issues:
1. Appeal under Section 35G of the Central Excise Act, 1944 against the order of the Tribunal.
2. Applicability of duty rate reduction from 20% to 18% on iron ore and steel castings.
3. Dispute over the credit of excess duty paid and penalty imposition.
4. Tribunal's decision on waiving penalty and unjust enrichment claim.
5. Consideration of Chartered Accountant's certificate and customer's statement.

Analysis:
1. The appellant filed an appeal under Section 35G of the Central Excise Act, 1944 against the Tribunal's order dated 17th October, 2005, which set aside the Commissioner (Appeals) order and allowed the appeal of the respondent-assessee regarding the clearance of goods at a higher duty rate than applicable.

2. The dispute arose when the appellant cleared iron ore and steel castings at a duty rate of 20% ad valorem in March 1997, despite the duty rate being reduced to 18% for their products. The appellant later rectified the error by taking credit for the excess duty paid on 26th March 1997, leading to a notice from the adjudicating authority questioning the credit availed and imposing a penalty.

3. The Commissioner (Appeals) upheld the penalty, but the Tribunal ruled in favor of the appellant, citing the SRP system under which the appellant operated. The Tribunal held that if the appellant corrected the duty liability error before the end of the month and reflected it in the monthly Return R.T.-12, they could take credit for the excess duty paid by a simple intimation to the Superintendent of Central Excise.

4. The appellant contended that waiving the penalty would result in unjust enrichment as the excess duty paid was passed on to the customer. However, the Tribunal considered evidence, including a Chartered Accountant's certificate and a statement from the customer confirming no excess payment or credit availed beyond 18% duty, leading to the setting aside of the penalty.

5. Upon reviewing the case, the High Court found no substantial question of law for adjudication and dismissed the appeal at the admission stage, affirming the Tribunal's decision. The Court concluded that the appeal lacked substance and did not warrant further consideration based on the evidence presented and the Tribunal's reasoning.