2007 (5) TMI 123 - AT - Central Excise

Penalty - Department contended that appellant liable to pay penalty along with interest on the ground that wrong availment of credit - Held that revenue contention was not sustained and allowed the appeal with consequential relief

Summary

Issues:
Under-valuation of goods between two close units, alleged violation of Rule 7(b) of Cenvat Credit Rules, imposition of penalty under Rule 30 of Cenvat Credit Rules, interest under Section 11AB demanded, appeal against Order-in-Appeal No. 239/04-C.E.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Bangalore was filed against Order-in-Appeal No. 239/04-C.E., dated 31-12-2004, passed by the Commissioner of Central Excise-II Hyderabad. The case involved two units, one manufacturing ingots and the other re-rolling these ingots into various products. The department alleged under-valuation of goods sent between the units, specifically captively consumed goods. The appellant paid the differential duty upon detection by departmental officials and later claimed Cenvat credit. However, the Revenue proceeded against the appellant for wrongly taking a credit of Rs. 3,37,989 in violation of Rule 7(b) of Cenvat Credit Rules, 2002, imposing a penalty under Rule 30 of the same rules, and demanding interest under Section 11AB of the Central Excise Act, 1944. The Commissioner (Appeals) modified the penalty but upheld the rest of the order, leading to the appeal by the appellants.

During the hearing, both sides presented their arguments. The Tribunal noted that the appellant promptly paid the differential duty even before the issuance of a show cause notice upon detection of under-valuation. The appellants took Cenvat credit as the goods were captively consumed in the second unit. The Tribunal referred to a similar case involving stock transfer where the prohibition under Rule 7(1)(b) of Cenvat Credit Rules was found not applicable, even in cases of fraud or suppression of facts leading to recoverable duty. The Tribunal observed that the entire transaction was revenue neutral, with no intention to evade Central Excise duty. Therefore, the penalty imposed was deemed unjustified. Following the precedent set in a previous decision, the Tribunal allowed the appeal, providing consequential relief as necessary.

The Tribunal pronounced the operative portion of the order in open court upon the conclusion of the hearing, granting relief to the appellant based on the above analysis and legal considerations.