2013 (12) TMI 441 - AT - Central Excise

Availment of cenvat credit - Cenvat credit utilised for the manufacturer of exempted products - Penalty u/s 11A(2B) - Held that - The Adjudicating Authority has not given any reason for imposing equivalent amount as penalty. The First Appellate Authority has recorded that the appellant herein has suppressed and indulged in committing fraud which is unsubstantiated. On the perusal of the show-cause-notice though there is allegation of suppression or fraud committed by the appellant herein for taking cenvat credit, on deeper perusal of the show-cause-notice, I find that the said show-cause-notice does not indicate any reasons for invoking the extended period of limitation - first Appellate Authority cannot justify the imposition of penalty by recording reasoning which were not invoked in the show-cause notice. In view of this the equivalent penalty imposed on the appellant is improper and needs to be set aside. The appeal to the extend it challenges the upholding of imposition of equivalent of penalty is set aside and the impugned order to that extent is set aside. As the appellant on being pointed out reversed the amount and is not contesting the issue on merits, the interest liability gets fastened; even as per the provisions of section 11A(2B), interest liability needs to be discharged by an assessee when he reversed an amount on his own or being pointed out by an office. In the facts and circumstances of this case, I find that interest liability of ₹ 27,366/- for improper availment of cenvat credit needs to be upheld - Following decision of Union of India vs. Rajasthan Spinning & Weaving Mills 2009 (5) TMI 15 - SUPREME COURT OF INDIA - the liability to interest is upheld and penalty imposed on the appellant is set aside - Decided partly in favour of assessee.

Summary

Issues:
Demand of interest on wrongly availed credit and imposition of penalty under Rule 15 of Cenvat Credit Rules, 2003.

Analysis:
The appeal pertains to the demand of interest and penalty imposed on the appellant for availing ineligible cenvat credit utilized in manufacturing exempted products. The appellant reversed the credit upon identification during an audit. The interest demand of Rs. 27,366 was contested by the appellant, but the tribunal upheld it citing Section 11A(2B) which mandates interest payment upon reversal of credit. The tribunal rejected the appeal on interest liability. Regarding the penalty under Rule 15 of Cenvat Credit Rules, 2004, the tribunal found it unwarranted. The Adjudicating Authority did not provide sufficient reasoning for the penalty, and the allegation of suppression or fraud was not substantiated in the show-cause notice. Citing a Supreme Court judgment, the tribunal held that penalty imposition without invoking specific allegations in the notice was improper. Consequently, the penalty was set aside, and the appeal challenging it was upheld. In conclusion, the interest liability was upheld, while the penalty imposed was set aside.

This judgment highlights the importance of adhering to procedural requirements and providing specific allegations in show-cause notices for penalty imposition. It underscores the necessity for authorities to justify penalties with clear reasoning and not base decisions on uninvoked grounds. The tribunal's decision serves as a reminder for meticulous adherence to legal provisions and principles while imposing penalties in excise matters.