2013 (8) TMI 572 - AT - Central Excise

Penalty u/s 11AC - Commissioner set aside penalty imposed by Department and imposed penalty under Rule 15(4) - Held that - For imposing a penalty on any person under the above provision, the Department should clearly allege in the relevant show-cause notice that such person has wrongly taken or utilized CENVAT credit on input services by reason of fraud, collusion, wilful mis-statement, suppression of facts or contravention of any of the provisions of the Finance Act, 1994 or of the rules made thereunder with intention to evade payment of service tax. None of these ingredients was alleged in the subject show-cause notice for imposing penalty on the appellant under Rules 15(4) - Following decision of CCE, Pune-I vs. Thermax Ltd. 2010 (1) TMI 460 - CESTAT MUMBAI - Decided against assessee.

Summary

Issues:
1. Whether the assessee is liable to be penalized under Rule 15(4) of the CENVAT Credit Rules, 2004 for irregular availment of credit?
2. Whether the penalty imposed on the assessee under Rule 15(4) by the Commissioner (Appeals) is sustainable?

Analysis:
1. The appeal raised the question of penalizing the assessee under Rule 15(4) of the CENVAT Credit Rules, 2004 for irregularly availing CENVAT credit. The appellant, having a manufacturing unit and a service providing unit, mistakenly took credit meant for the service unit. The Department noticed this irregularity, issued a show-cause notice, and demanded recovery, interest, and penalty. The original authority confirmed the demand, interest, and imposed a penalty under Rule 15(3). Subsequently, the Commissioner (Appeals) set aside the penalty under Rule 15(3) and imposed a higher penalty under Rule 15(4), leading to the current appeal.

2. The appellant argued that the show-cause notice did not specifically allege grounds for imposing a penalty under Rule 15(4), violating principles of natural justice. The Department contended that the notice implied the case for such a penalty. However, the Tribunal found that the show-cause notice did not contain the necessary allegations for invoking Rule 15(4). The notice only mentioned contravention of rules to evade duty, not the specific grounds required for a penalty under Rule 15(4). The Tribunal cited precedents emphasizing the importance of clearly specifying the grounds for penalties in show-cause notices. As the allegations did not meet the requirements of Rule 15(4), the penalty imposed by the Commissioner (Appeals) was set aside, and the penalty under Rule 15(3) by the original authority was restored.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the penalty imposed under Rule 15(4) and restoring the penalty under Rule 15(3. The judgment highlighted the necessity of clearly alleging the grounds for penalties in show-cause notices to ensure compliance with the legal provisions.