2014 (7) TMI 26 - AT - Central Excise

CENVAT Credit - Sugar Cess Credit - Held that - So far as recovery of interest is concerned it is observed from both the show cause notices dated 29-8-2012 & 19-9-2012 that it has been specifically mentioned that interest is not required to be paid by the appellant. By confirming the interest in O-I-O adjudicating authority has, therefore, gone beyond the scope of show cause notices. Therefore, order of the appellate authority upholding the payment of interest is required to be set aside because adjudicating authority cannot go beyond the scope of show cause notice. So far as imposition of penalty is concerned it is seen that appellant has debited the entire Cenvat credit taken in a month on the last day of the same month. Once the entire Cenvat credit taken is also reversed in the same month then it has to be held that it is not a fit case for imposition of penalty and the same is also required to be set aside - Decided in favour of assessee.

Summary

Issues: Stay application against O-I-A Nos. 105 & 106/2013 (Ahd-II)/CE/AK/Commr (A)/Ahd regarding admissibility of Sugar cess credit under Rule 3(1) of Cenvat Credit Rules, 2004.

The appellant filed a stay application and appeal against O-I-A Nos. 105 & 106/2013 challenging the non-admissibility of Sugar cess credit under Rule 3(1) of the Cenvat Credit Rules, 2004. The appellant's consultant argued that they are not contesting the credit admissibility but disputed the imposition of interest and penalty. The consultant contended that since interest was not demanded in the show cause notice, it should not be recoverable. On the penalty issue, the appellant argued that a recent decision by CESTAT favored them, hence no penalty should be imposed. The authorized representative for the respondent reiterated the findings of the Commissioner (Appeals).

Upon reviewing the submissions and case records, it was noted that the issue had already been decided against the appellant by CESTAT. The Tribunal observed that interest was not required to be paid by the appellant as per the show cause notices dated 29-8-2012 & 19-9-2012. Therefore, the appellate authority's decision upholding the payment of interest was deemed beyond the scope of the show cause notices. Consequently, the order regarding the payment of interest was set aside. Regarding the imposition of penalty, it was found that the appellant had reversed the entire Cenvat credit taken in a month on the last day of the same month. Since the entire credit was reversed, it was concluded that no penalty should be imposed. Thus, the appeal filed by the appellant was allowed, and the decisions on interest and penalty were set aside.

The judgment was pronounced in the court by the Members (J) and (T) of the Appellate Tribunal CESTAT AHMEDABAD.