2013 (8) TMI 231 - AT - Central Excise

Penalty increased by First Appellate Authority on the appeal filed by Assessee Held that - The first appellate authority has not issued any show cause notice to the appellant for enhancement of the penalty, despite there being statutory provisions in Section 35A of Central Excise Act, 1944. To that extent, the impugned order of the first appellate authority is inconsistent with the provisions of Central Excise Act, 1944 and is unsustainable on that ground itself - The enhancement of penalty by the first appellate authority without issuing show cause notice to the appellant is held as unsustainable - Decided in favor of Assessee

Summary

Issues:
Penalty under Rule 15 of CENVAT Credit Rules, 2004.

Detailed Analysis:

Issue: Penalty under Rule 15 of CENVAT Credit Rules, 2004

The appeal involved a dispute regarding the penalty imposed under Rule 15 of the CENVAT Credit Rules, 2004. The appellant had availed CENVAT Credit on duty paid on capital goods from 2001 to 2006, along with claiming depreciation under the Income Tax Act. The adjudicating authority confirmed the demand for the period 2001-2005, accepted the amounts reversed by the appellant, and imposed a penalty of Rs.10,000 under Rule 13/Rule 15 of the CENVAT Credit Rules, 2004. The appellant contested this penalty before the first appellate authority, which enhanced the penalty to Rs.39,964 based on Rule 15(2) of the Rules. The main contention was whether the first appellate authority had the authority to enhance the penalty without a Revenue appeal against the original penalty.

The Tribunal analyzed the legal provisions and precedents related to the appellate authority's power to enhance penalties. It was established that the first appellate authority can only enhance penalties on appeal by the Revenue or as per statutory provisions. In this case, since the Department did not appeal against the original penalty, the first appellate authority's enhancement of the penalty without issuing a show cause notice to the appellant was deemed inconsistent with the Central Excise Act, 1944. Therefore, the Tribunal held that the enhancement of penalty by the first appellate authority was unsustainable and set it aside.

However, the Tribunal upheld the penalty imposed by the adjudicating authority, stating that the appellant's actions in availing CENVAT Credit on capital goods while also claiming depreciation under the Income Tax Act violated the CENVAT Credit Rules, 2004. Therefore, the penalty imposed by the adjudicating authority was deemed correct and required no interference. The appeal was disposed of by upholding the penalty imposed by the adjudicating authority and declaring the enhancement by the first appellate authority as incorrect.

In conclusion, the Tribunal upheld the penalty imposed by the adjudicating authority, set aside the enhancement by the first appellate authority, and disposed of the appeal accordingly.