2012 (6) TMI 307 - AT - Central Excise

Quantification of demand - Simultaneous claim of cenvat credit on the central excise duty on the capital goods and availed depreciation also - Held that - As Commissioner (Appeals) while passing the order has not quantified the amount as required under Section 11A(2) and at the same time he has not remanded the matter also the submission that the appellant themselves can quantify and pay the amount since they are aware of all the facts cannot be accepted - the matter is required to be remanded to the original adjudicating authority who has to re-quantify the amount of demand as per the orders of the Commissioner (Appeals)

Summary

Issues:
1. Admissibility of cenvat credit and depreciation on capital goods.
2. Invocation of extended period for proceedings.
3. Quantification of demand and penalty under Central Excise Act.

Analysis:
1. The appellant had taken cenvat credit on the central excise duty portion of capital goods and also availed depreciation, contrary to Cenvat Credit Rules from 2001-2002 to 2006-2007. The Commissioner confirmed the demand from February 2005 onwards due to procedural errors. The appellant admitted the inadmissibility of the credit and sought unconditional stay.

2. The AR argued that the extended period was rightly invoked due to the incorrect availing of credit and depreciation. The suppression of facts justified the invocation of the extended period and the imposition of penalties. The AR contended that no grounds existed for dismissing the appeal.

3. The Tribunal noted that the Commissioner did not quantify the payable amount as required by Section 11A(2) of the Central Excise Act, 1944. As a result, the matter needed to be remanded to the original adjudicating authority for quantification. The Tribunal disagreed with the AR's suggestion that the appellant should quantify the amount, stating that it was the duty of the assessing authority to do so. The Tribunal also upheld the imposition of penalties under Section 11AC of the Central Excise Act due to the confirmed demand for over a year.

4. Consequently, the impugned order was set aside, and the matter was remanded for a fresh decision. The original adjudicating authority was tasked with finalizing the amount payable for the wrongly availed cenvat credit, along with interest and penalty. The appellant was to be given a reasonable opportunity to present their case during the quantification process.