2011 (10) TMI 540 - AT - Central Excise

Rectification of mistake - Held that - claim of the respondent/assessee that at the time of availment they had the original copy of bill of entry is not acceptable. The original adjudicating authority has already observed that the requirement of submission of documents with the returns has been discontinued and therefore the responsibility to take credit on the basis of proper document is on the assessee and to show that it has been taken so is also on the assessee. Therefore the suppression of fact has been correctly invoked and the observations even though have not directly discussed limitation, the discussions are sufficient to show that the decision would not have been different if these aspects were considered separately and discussed. Therefore the order does not require modification as far as this aspect is concerned - Rectification denied. If the Cenvat credit amount demanded, interest thereon is paid with 25% of Cenvat credit demanded towards penalty within thirty days of the receipt of this order, the assessee shall not be required to pay the balance 75% of the penalty. It is made clear that if duty and interest and penalty to the extent of 25% of duty is not paid within thirty days of the receipt of this order, the assessee shall be required to pay the Cenvat credit amount demanded, interest thereon and penalty equal to Cenvat credit amount demanded by the original adjudicating authority.

Summary

Issues: Rectification of mistake in the order of the Tribunal

Analysis:
The application for rectification of mistake was filed to rectify an error in the Tribunal's order dated 10-8-2011. The applicant requested consideration of their submissions regarding the denial of Cenvat credit, citing relevant case laws and statutory provisions. They argued that the Show Cause Notice did not specify grounds for invoking a larger period, and therefore, the larger period could not be invoked without evidence of suppression or misstatement. Additionally, the applicant sought an option to pay reduced penalties under Section 11AC of the Central Excise Act, 1944, referencing various court decisions supporting their claim.

Analysis:
The applicant contended that even though the credit might not be available on merit, the demand for Cenvat credit should have been set aside as the Show Cause Notice was time-barred. They highlighted that the Revenue was in appeal against the order, focusing on the merits, and thus, the limitation aspect was not considered by the Tribunal. Despite the absence of a cross-objection, the applicant urged fairness and justice in considering the limitation issue. The Tribunal's observations indicated skepticism regarding the respondent's claim of misplacing the original bill of entry and emphasized the responsibility of the assessee to provide proper documents for credit availed, leading to the correct invocation of suppression of facts.

Analysis:
The applicant raised a point regarding the adjudicating authority's failure to grant the benefit of payment of duty, interest, and penalty within thirty days of receiving the order. While this alternate submission was not initially made during the appeal hearing, the applicant later agreed to extend the benefit of reduced penalty in the interest of justice and fairness. Consequently, the Tribunal ruled that if the Cenvat credit amount demanded, along with interest and 25% of the penalty, is paid within thirty days of the order receipt, the assessee would not be liable for the remaining 75% of the penalty. Failure to comply within the stipulated period would result in the assessee being required to pay the full penalty amount demanded by the original adjudicating authority. The ROM application was decided accordingly.