2014 (3) TMI 638 - AT - Central Excise

Levy of Penalty u/s 11AC - Availment of CENVAT Credit - Commissioner (appeals) set aside the penalty imposed under Section 11AC of Central Excise Act on the ground that the amount of duty was paid before issue of Show Cause Notice. - Held that - In view of the decision of the Hon ble Supreme court in the case of Union of India Vs Rajasthan Spinning & Weaving Mills - 2009 (5) TMI 15 - SUPREME COURT OF INDIA , we are unable to accept the finding of the Commissioner (Appeals) for setting aside the penalty. However, we uphold the order of the Commissioner (Appeals) in so far as setting aside of the penalty for the reason that we do not find any ingredients of Section 11AC in the present case. After considering facts and circumstances of the case, in our considered view, the imposition of penalties are not warranted. But, the demand of interest as applicable for the period Oct 98 to Jan 2000 is justified. - Decided partly in favour of Revenue.

Summary

Issues:
- Appeal against setting aside of penalty and interest by Commissioner (Appeals)
- Allegations of not including cost of amortization of moulds and dyes in assessable value
- Alleged wrongful availing of CENVAT credit
- Imposition of penalties under Section 11AC and Rule 173Q
- Payment of duty before detection by officers
- Applicability of penalties in case of fraud, collusion, or suppression of facts

Analysis:
The appeal was filed against the Order-in-Appeal setting aside penalties and interest imposed by the Commissioner (Appeals). The case involved allegations that the respondent did not include the cost of amortization of moulds and dyes in the assessable value and wrongly availed CENVAT credit. The adjudicating authority confirmed the duty demand and penalties, which was challenged in the appeal. The authorized representative for the appellant argued that penalties should be imposed under Section 11AC of the Act due to fraud and intent to evade duty. The advocate for the respondent contended that there was no evasion of duty or suppression of facts. The Tribunal noted that the respondent had paid a sum before the officers' visit, and the Commissioner (Appeals) had set aside penalties citing payment before the Show Cause Notice issue.

The Tribunal referred to the statement of the respondent's authorized person, highlighting the details of the transactions and debits made in the accounts. The Tribunal observed that penalties under Section 11AC could be imposed in cases of fraud or suppression of facts to evade duty. However, the Commissioner (Appeals) had set aside the penalty based on the duty payment timing. The Tribunal, considering the facts and circumstances, upheld the setting aside of penalties, finding no grounds for their imposition. While penalties were not warranted, the demand for interest for the specified period was deemed justified. The Tribunal modified the Commissioner (Appeals) order to levy interest under Section 11AB, disposing of the appeal and cross-objections accordingly.

In conclusion, the Tribunal upheld the setting aside of penalties, emphasizing the lack of grounds for their imposition in the case. Interest under Section 11AB was deemed justified, and the appeal filed by the Revenue was disposed of accordingly. The decision provided a detailed analysis of the facts, legal provisions, and the reasoning behind the judgment, ensuring a comprehensive review of the issues raised in the appeal.