2011 (5) TMI 632 - AT - Central Excise

Cenvat Credit demand along with interest and imposed penalty - shortage of stock of copper scrap - - Held that - Director of the assessee company while not disputing the shortage, has not given any explanation for the same. Such type of shortages can be either on account of clandestine removal or on account of purchase of invoices of scrap without receiving any material and in either case, penalty under Rule 15 of the Cenvat Credit Rules 2004 read with section 11AC would be attracted, revenue s appeal allowed.

Summary

Issues:
1. Confirmation of Cenvat Credit demand along with penalty against the respondent.
2. Imposition of penalty on the Director of the respondent company.
3. Appeal against the order of Commissioner (Appeals) setting aside penalty on the respondent company.

Analysis:
1. The Assistant Commissioner confirmed a Cenvat Credit demand of Rs.2,49,696/- against the respondent, along with interest and imposed a penalty under Rule 15 of Cenvat Credit read with section 11AC of the Central Excise Act, 1944. A shortage of 8500 kg of copper scrap was detected during an inspection, and the respondent paid the disputed amount even before a show cause notice was issued. The Commissioner (Appeals) upheld the Cenvat Credit demand but set aside the penalty on the respondent company and its Director due to lack of evidence of clandestine removal of the scrap. The revenue appealed against this decision, challenging the setting aside of the penalty.

2. During the appeal, the authorized representative for the appellant argued that the shortage of 8500 kg of copper scrap, without any explanation from the respondent, could lead to the conclusion of either clandestine clearance or taking credit without receiving the material. It was contended that the penalty should be upheld under Rule 15 of the Cenvat Credit Rules read with section 11AC of the Central Excise Act. The representative requested the restoration of the original adjudicating authority's order regarding the penalty on the respondent company.

3. The respondent's counsel defended the Commissioner (Appeals)'s decision by emphasizing that a shortage alone does not prove clandestine removal. It was argued that without evidence supporting the allegation of clandestine removal, penalties should not be imposed. Reference was made to a Tribunal case to support this argument. After considering both sides' submissions and reviewing the records, the judge concluded that the shortage of 8500 kgs of copper scrap, without any explanation, could indicate clandestine removal or improper invoicing. Therefore, the penalty under Rule 15 of the Cenvat Credit Rules was deemed applicable. Consequently, the penalty set aside by the Commissioner (Appeals) was overturned, and the original adjudicating authority's decision was restored. The revenue's appeal was allowed.