2013 (12) TMI 753 - AT - Central Excise

Imposition of Section 11A(2B) of Central Excise Act, 1944 Liability to pay Interest and penalty - Credit taken without receipt of the goods into the factory Manipulation of the private records Held that - A plain reading of Section 11A(2B) clearly shows that where duty has not been levied or paid short-levied or short-paid by reason of fraud or collusion or any willful misstatement or suppression of facts, then the provisions of Section 11A(2B) will not apply - , the respondent has reversed the credit that of without paying any interest Following COMMISSIONER OF CENTRAL EXCISE, DELHI-III Versus MACHINO MONTELL (I) LTD. 2006 (7) TMI 23 - HIGH COURT OF PUNIAB & HARYANA (CHANDIGARH) - If any of the element such as fraud, collusion, suppression or willful mis-statement are present, the provisions of Section 11A(2B) would not apply and interest and penalty would be imposable - the respondent has resorted to fraud and forgery, therefore, the order of the lower appellate authority setting aside the interest and penal liability is clearly bad in law Order set aside and the matter restore tot the adjudicatory authority Decided in favour of Revenue.

Summary

Issues:
1. Delay in filing cross-objection due to misplaced file.
2. Admissibility of CENVAT credit without receipt of goods.
3. Allegations of fraud in taking credit and manipulation of records.
4. Liability for interest and penalty under Section 11A(2B).
5. Interpretation of relevant case laws and their applicability.

Issue 1:
The appeal concerns a delay in filing a cross-objection due to a misplaced file, which led to the dismissal of the Cross Objection. The COD application to condone the delay of about four years was deemed unsatisfactory, resulting in the dismissal of the application.

Issue 2:
The case involves the admissibility of CENVAT credit without the actual receipt of goods in the factory. The appellant took credit for goods imported without physically receiving them in their factory, leading to discrepancies in the records and subsequent scrutiny by the Preventive Staff of the Central Excise Division.

Issue 3:
Allegations of fraud arise as the appellant manipulated records, including the Gate Register, and consigned goods directly to a customer without bringing them into their factory. The appellant admitted to taking credit for goods not intended for their use, indicating a deliberate attempt to avail ineligible credit.

Issue 4:
The primary contention revolves around the liability for interest and penalty under Section 11A(2B) of the Central Excise Act. The Revenue argues that the appellant's actions amount to fraud, making them liable for interest and penalties despite reversing the credit before the issuance of a show-cause notice.

Issue 5:
Various case laws are cited by both parties to support their arguments. The Tribunal analyzes these precedents to determine their applicability to the current case. The decision emphasizes the importance of fraudulent intent in determining liability for interest and penalties under Section 11A(2B) of the Central Excise Act.

In conclusion, the Tribunal sets aside the lower appellate authority's order and restores the decision of the adjudicating authority, allowing the Revenue's appeal based on the fraudulent conduct of the appellant in availing ineligible credit.