2011 (7) TMI 556 - AT - Central Excise

Penalty under 11AC - Demand of differential duty - Appellant has a number of manufacturing units located at various places like Navasari, Kutch, Mumbai etc - During CERA audit it was noticed that the Navasari unit of the appellant had cleared soap noodles to their Kutch unit for captive consumption at the rate of Rs.22,236/- per MT during the period 2003 - 2004 to 2005 - 2006. As per the audit, the correct costing of the soap noodles would come to Rs.23,946/- per MT - Held that - As the differential duty involved in the present appeal already stands paid by the appellant and availed as credit by their sister unit - Further in the case of Jai Raj Ispat Ltd. Vs. CCE Hyderabad 2007 (5) TMI 123 - CESTAT, BANGALORE & CCE, Mysore Vs. Karnataka Soaps & Detergents Ltd. 2008 -TMI - 33765 - CESTAT, BANGALORE , it was held that duty payable by one unit is available as credit to the another unit of the same manufacturer and as such there can be no revenue loss to the government - Therefore, set aside the penalty imposed upon the appellant under the provision of Section 11AC of the Act.

Summary

Issues:
1. Correct costing of soap noodles.
2. Demand of duty, interest, and penalty.
3. Availability of modvat credit.
4. Revenue neutrality and intent to evade duty.
5. Applicability of Section 11AC of the Act.

Analysis:
1. The judgment pertains to a case where the appellant had multiple manufacturing units and had cleared soap noodles from one unit to another for captive consumption. The audit revealed a discrepancy in the costing of the soap noodles, leading to the initiation of proceedings resulting in the demand of duty, interest, and penalty against the appellant.

2. The appellant challenged the order before the Commissioner (Appeals), who reduced the total duty amount based on various factors related to the costing. The appellant, through their advocate, argued that the duty paid by one unit was available as credit to another unit, emphasizing revenue neutrality and disputing any intent to evade duty. The advocate requested the penalty to be set aside.

3. The Tribunal considered the submissions and noted that the duty paid by the appellant was indeed being availed as modvat credit by their sister unit, indicating no revenue loss to the government. Citing precedents, including the case of Jai Raj Ispat Ltd. Vs. CCE Hyderabad, the Tribunal concluded that penalties in such scenarios were unjustified. Referring to the case of Commissioner of Central Excise, Mysore Vs. Karnataka Soaps & Detergents Ltd., the Tribunal upheld the dropping of penalty proceedings against the appellant.

4. Consequently, the Tribunal confirmed the demand of duty and interest, as uncontested, but set aside the penalty imposed on the appellant under Section 11AC of the Act. The decision was made based on the principle of revenue neutrality and the absence of any fraudulent intent to evade duty, as evidenced by the availability of modvat credit between the appellant's manufacturing units.