2011 (10) TMI 528 - AT - Central Excise

Improper availment of Cenvat credit - Penalty - First appellate authority held that adjudicating authority in effect did not find availment of Cenvat Credit erroneous under law. For such reason when he was of the firm view that there was no contravention of Rule 9 and Cenvat Credit Rules, 2004, imposition of penalty was undesirable - Held that - Before the appellate order could see the light of the day. Show Cause Notice was issued for review on 22-1-2009. This is an essence in conflict with law because it appears that the reviewing Commissioner without any regard to the first appellate order passed made review although the same Commissioner who was Appellate Authority acted as a reviewing authority without looking to his own decision in para 6 of the order dated 6-2-2008 and again reversed his decision by a review in terms of order dated 5-10-2009 to disallow Cenvat credit while dropping the penalty. Such an action of the authority shakes public confidence and results in public mischief - Decided in favour of assessee.

Summary

Issues:
1. Difference in opinion between Commissioners on adjudication order
2. Review of the adjudication order by the Commissioner
3. Imposition of penalty for improper availment of Cenvat credit
4. Issuance of Show Cause Notice for review
5. Decision to disallow Cenvat credit and drop the penalty
6. Public confidence in the authority's actions

Analysis:

1. The judgment addresses a case where there was a difference in opinion between the Commissioner reviewing the adjudication order and the Commissioner who decided the appeal of the assessee. Due to this conflict, the case required final disposal. An application for adjournment was present, but it was decided that the case should proceed. A COD application was allowed due to a slight delay in seeking appeal remedy, with no mala fide intentions from the Appellant.

2. The appellant had also filed a stay application in the case. The history of the matter revealed that the adjudication against the improper availment of Cenvat credit resulted in a penalty being levied while dropping the duty demand related to the credit. The first Appellate Authority concurred with this decision, emphasizing the lack of contravention of Rule 9 and the Cenvat Credit Rules, 2004. The imposition of the penalty was deemed undesirable in this context.

3. Before the appellate order could be finalized, a Show Cause Notice was issued for review, which was considered conflicting with the law. The reviewing Commissioner proceeded with the review without considering the first appellate order, leading to a reversal of the decision to disallow Cenvat credit while dropping the penalty. This action was criticized for undermining public confidence and causing public mischief.

4. In light of the observations made regarding the review process and the conflicting decisions, the appeal was allowed, and the impugned order was set aside. This decision aimed to rectify the inconsistencies in the adjudication process and restore clarity to the case.

5. Additionally, a mention was made of a Miscellaneous Application related to the lifting of attachment, which became irrelevant following the decision to set aside the impugned order. The judgment concluded by stating that the decision was dictated and pronounced in open court, ensuring transparency in the judicial process.