2011 (7) TMI 913 - AT - Central Excise

Penalty - Demand - Commissioner (Appeals) has dropped the penalty on the ground that there is issue of interpretation whether the assessee is entitled for credit on welding electrode which are being used for repair and maintenance of plant an machinery or not - Held that the ingredients of Section 11AC are absent in the facts and circumstances of the present case - Appeal is dismissed

Summary

Issues:
1. Appeal against dropping of mandatory penalty under Section 11AC of Central Excise Act, 1944.
2. Interpretation of entitlement for credit on welding electrodes used for repair and maintenance of plant and machinery.

Analysis:
1. The appeal was filed by the Revenue against the dropping of the mandatory penalty under Section 11AC of the Central Excise Act, 1944 by the lower appellate authority. The issue revolved around the interpretation of whether the assessee is entitled to credit on welding electrodes used for repair and maintenance of plant and machinery. The Commissioner (Appeals) confirmed the demand by denying the credit on welding electrodes, which was challenged before the Tribunal.

2. The learned SDR argued that the issue of credit on welding electrodes for repair and maintenance of plant and machinery is pending before the Apex Court in a specific case. On the contrary, the advocates for the respondents contended that the Tribunal had already held in a previous order that the assessee is entitled to credit on welding electrodes used for repair and maintenance of plant and machinery. As no duty was payable by the respondents, the question of penalty did not arise, and the appeal was to be merged with the previous Tribunal order.

3. After hearing both sides and considering their submissions, the judge noted that the Revenue sought to impose a penalty under Section 11AC, which was dropped by the Commissioner (Appeals) due to the interpretation issue regarding the entitlement for credit on welding electrodes. The judge observed that the mandatory penalty cannot be imposed as the ingredients of Section 11AC were not met, especially since the issue was still in controversy as per a cited decision. Additionally, since the impugned order confirming the duty had already been set aside by the Tribunal, the question of imposing a penalty did not arise.

4. Consequently, the judge found no merits in the Revenue's appeal and dismissed it based on the above observations. The decision was made considering the absence of ingredients for imposing the mandatory penalty under Section 11AC and the previous Tribunal order allowing credit on welding electrodes for repair and maintenance purposes.