2013 (11) TMI 1220 - AT - Central Excise

Invocation of Rule 8 of the Central Excise Rules, 2002 - Cenvat credit wrongly taken Credit reversed by the assessee when came to know about the wrong availment Held that - The appellant paid the duty through by wrongly utilising the Cenvat Credit earned in the month of April 2007 - This error on the part of the appellant was noticed by himself and made good in April 2008 along with interest and thereafter, the appellant intimated to the department after rectifying the error committed - it cannot be said that the appellant deliberately defaulted in payment of excise duty - the appellant wrongly availed the Cenvat Credit payment of duty under Rule 14 of the Cenvat Credit Rules provides for recovery of Credit wrongly taken or utilized - the appellant has reversed the credit and made good the wrongly availed credit along with interest thereon. - the provisions of Rule 8 of the Central Excise Rules, 2002 are not at all attracted - the confirmation of duty demand under Rule 8 is not sustainable in law the assessee has made good the wrongly availed Cenvat Credit along with interest, imposition of penalty is totally unwarranted - For the contravention of the Cenvat Credit Rules, 2004 the penalty as provided under Rule 15(3) of the Cenvat Credit Rules should suffice Decided partly in favour of Assessee.

Summary

Issues Involved:
1. Wrong utilization of Cenvat Credit.
2. Invocation of Rule 8 of the Central Excise Rules, 2002.
3. Confirmation of duty demand and imposition of penalties.

Detailed Analysis:

1. Wrong Utilization of Cenvat Credit:
The appellant, M/s. Pranav Construction Systems Pvt. Ltd., had an outstanding duty liability of Rs.1,60,225/- as on 31/03/2007. This amount was paid on 01/04/2007 using Cenvat Credit earned on the same day, which was against the provisions of sub-rule 3(4) of the Cenvat Credit Rules, 2004. The rule specifies that "CENVAT credit shall be utilized only to the extent such credit is available on the last day of the month or quarter." The appellant rectified this mistake on 30/04/2008 by paying the amount through the PLA account along with interest. The department issued a show-cause notice alleging default in duty payment and directed the appellant to pay Rs.3,86,55,390/- through the PLA account, including penalties and interest.

2. Invocation of Rule 8 of the Central Excise Rules, 2002:
The appellant argued that the issue was a case of wrong utilization of credit, which should be addressed under Rule 14 of the Cenvat Credit Rules, 2004, rather than invoking Rule 8 of the Central Excise Rules, 2002. The Tribunal agreed, noting that the language of Rule 8 inherently implies a deliberate failure in discharge of duty liability, which was not the case here. The appellant had made an error in utilizing the credit but had subsequently rectified it. The Tribunal cited several cases, including CCE, Indore Vs. Deepak Silicate (P) Ltd. and Solar Chemferts Pvt. Ltd. Vs. CCE, Thane, to support the view that Rule 8(3A) should not be invoked for short payments due to errors in computation or wrong utilization of credit.

3. Confirmation of Duty Demand and Imposition of Penalties:
The adjudicating authority confirmed the duty demand of Rs.3,86,65,370/- and imposed a penalty of Rs.50 lakhs for wrong utilization of Cenvat Credit. The Tribunal found that the appellant had already made good the wrongly availed credit along with interest, and thus, the provisions of Rule 8 were not applicable. The Tribunal concluded that the imposition of a Rs.50 lakh penalty was unwarranted and reduced it to Rs.2000/- under Rule 15(3) of the Cenvat Credit Rules for the contravention.

Conclusion:
The Tribunal held that the appellant's conduct did not constitute a deliberate default in duty payment. The wrong utilization of Cenvat Credit was rectified, and thus, the invocation of Rule 8 was not justified. The duty demand under Rule 8 was not sustainable, and the penalty was reduced to Rs.2000/-. The appeal was disposed of accordingly.