2015 (10) TMI 1034 - AT - Central Excise

Imposition of penalty - Reversal of CENVAT Credit - cenvat credit on the inputs LDO was not received in their factory but diverted to sister unit - Held that - It is evident that the adjudicating authority has dropped the entire proceedings, it is only on appeal by the Revenue, the Commissioner (Appeals) has restored the demand of ₹ 4,59,611/- for the first time. Therefore, the LAA has rightly held that the respondents are eligible for reduced penalty within 30 days. Therefore, I do not find any infirmity in the order and the above facts are supported by the decision of the Hon ble High Court of Gujarat in the case of Rita Dyeing & Printing Mills Pvt. Ltd. (2012 (10) TMI 501 - GUJARAT HIGH COURT ). The demand confirmed for the first time by the Commissioner (Appeals). Therefore I do not find any merit Revenue appeal. - Decided against Revenue.

Summary

Issues:
Appeal against non-imposition of equal penalty on cenvat credit reversal for diverted inputs used in electricity generation.

Analysis:
The appeal was filed by Revenue against an order dated 31.07.2007, challenging the non-imposition of equal penalty. The case involved a show cause notice issued to the respondents for reversal of cenvat credit on inputs, specifically Light Diesel Oil (LDO), which was diverted to a sister unit instead of being received in the factory. The Additional Commissioner confirmed the demand and imposed an equivalent penalty. However, on appeal, the Commissioner (Appeals) remanded the case for verification of documents related to the receipt of inputs. The adjudicating authority later dropped the proceedings, stating that the inputs were duly received and accounted for as per the Cenvat Credit Rules.

Revenue appealed again, arguing that the respondents should reverse the cenvat credit availed on inputs used in electricity generation and diverted to other units. The Appellate Authority allowed the appeal in respect of duty demand and interest, but reduced the penalty to 25% due to the respondents having already paid a significant amount before the show cause notice. Revenue further appealed for restoration of equal penalty under Section 11AC.

During the proceedings, the Advocate for the respondent cited a High Court decision supporting the reduced penalty, emphasizing that the demand for cenvat credit was restored for the first time by the Commissioner (Appeals). The issue at hand was whether the reduced penalty of 25% was appropriate. The Appellate Tribunal noted that the adjudicating authority had initially dropped the proceedings, and it was only on Revenue's appeal that the demand was restored. The Tribunal found no fault in the reduced penalty decision, as supported by the cited High Court decision. Consequently, the Revenue's appeal was rejected, and the impugned order was upheld.

In conclusion, the Tribunal upheld the decision of the Commissioner (Appeals) to allow a reduced penalty of 25% to the respondents, considering the circumstances of the case and the sequence of events leading to the restoration of the demand for cenvat credit. The judgment highlighted the importance of procedural fairness and adherence to relevant legal provisions in tax matters.