2014 (12) TMI 489 - AT - Central Excise

Availment of ineligible CENVAT Credit - Withdrawal of permission to make fortnightly payment of duty - Duty paid through CENVAT Credit account - After duty paid through PLA account suo moto credit taken - Held that - Default made by the respondent has been rectified by making the payment through PLA along with interest. In these circumstances, the respondents are entitled for Cenvat Credit of duty paid through Cenvat credit account. Therefore, the ld. Commissioner (Appeals) has rightly dropped the demand of duty for taking suomotu credit. Further, as for the act of default, the respondent has already been penalized under Section 173Q of Central Excise Rules, 1944, therefore no further penalty is warranted. In these circumstances, I do not find any infirmity with the impugned order, the same is upheld. - Decided against Revenue.

Summary

Issues:
1. Appeal against dropping proceedings and cross objection by respondent.
2. Requirement of duty payment through PLA.
3. Imposition of penalty under Central Excise Act/Rules.
4. Challenge of orders before Commissioner (Appeals).
5. Contravention of Central Excise Rules by respondent.
6. Rectification of mistake by respondent.
7. Applicability of penalty under Section 173Q of Central Excise Rules.

Analysis:
The judgment deals with an appeal by the Revenue against orders dropping proceedings and a cross objection by the respondent. The respondent was initially required to make fortnightly duty payments but defaulted, leading to withdrawal of the payment facility. Subsequently, the respondent continued to pay duty through their Cenvat credit account, prompting the initiation of proceedings. The Adjudicating Authority dropped the demand but confirmed a penalty of Rs. 1 lakh. This decision was challenged by both parties before the Commissioner (Appeals), who upheld the dropping of demand and penalty. The Revenue appealed for demanding duty, interest, and an equivalent penalty, while the respondent filed a cross objection.

The Revenue argued that the respondent's contravention of Central Excise Rules by continuing to pay duty from Cenvat credit necessitated payment through PLA, demanding confirmation of duty with interest and imposition of a mandatory penalty. However, the respondent's representative contended that the respondent rectified the mistake by paying duty through PLA with interest, citing a previous Tribunal decision for the same period. It was suggested that a penalty under Section 173Q of the Central Excise Rules, up to Rs. 5000, was appropriate.

The judgment recognized that the respondent rectified the default by paying duty through PLA with interest, making them eligible for Cenvat Credit. Consequently, the demand for duty was rightfully dropped by the Adjudicating Authority. Since the respondent had already been penalized under Section 173Q of the Central Excise Rules for the default, no further penalty was deemed necessary. The decision upheld the Commissioner (Appeals) order, dismissing the Revenue's appeal and disposing of the cross objection accordingly.