2015 (12) TMI 935 - AT - Central Excise

Duty demand u/s 11A - Reversal of CVD - Held that - Appellant availed the credit of SAD during the period March 2005 to November 2006 and cleared the inputs as such without reversing the credit of SAD availed on such inputs, it was only reversed in the month of December 2006. In these circumstances, as the appellant had wrongly retained the amount of credit hence the appellants are liable for interest on the amount under Section 11AB of the Central Excise Act. In respect of penalty, I find that the appellant had only availed the credit but had not utilized and the credit was rightly availed at the time of receipt of the inputs in the factory. However, part of the credit was not reversed, i.e. of SAD hence it is not a case for imposition of any penalty. The penalty is set aside - Decided in favour of assessee.

Summary

Issues:
Demand confirmation under Section 11A of the Central Excise Act with interest and penalty imposition under Section 11AC of the Central Excise Act.

Analysis:
The appellant in this case filed an appeal against the impugned order confirming a demand of Rs. 11,17,450/- with interest under Section 11A of the Central Excise Act and a penalty under Section 11AC of the Act. The appellant had availed credit of duty on imported inputs/capital goods, cleared inputs without reversing the credit of special additional duty (SAD), and subsequently paid the disputed amount during investigation. The adjudicating authority confirmed the demand but dropped the proceedings for interest and penalty. However, the Commissioner (Appeals) modified the order, imposing a penalty under Section 11AC and confirming the interest demand. The appellant contended that it was not a case of wrongful credit availing, as the credit was rightfully taken at the receipt of inputs, and the failure to reverse SAD credit during input clearance was an oversight, not warranting interest and penalty.

The appellant argued that immediate payment upon deficiency notice demonstrated good faith. Additionally, it was highlighted that had the credit been reversed, the recipient of the inputs would have utilized it, rendering the situation revenue neutral. The Revenue, however, maintained that the appellant's failure to reverse full credit at input clearance indicated wilful intention, justifying interest and penalty. The Tribunal noted that the appellant retained SAD credit from March 2005 to November 2006, only reversing it in December 2006, thus wrongly retaining the credit amount. Consequently, interest under Section 11AB of the Act was deemed applicable. Regarding penalty, it was clarified that while the appellant availed but did not utilize the credit rightfully at input receipt, the failure to reverse SAD credit did not warrant penalty imposition. Thus, the penalty was set aside, and the appeal was disposed of accordingly.