2017 (2) TMI 432 - AT - Central Excise

Double availment of Cenvat credit - willfully suppression of fact with an intent to evade duty - whether the appellants are liable to penalty for availing the Cenvat Credit twice? - invocation of proviso to Section 11A(1)of the Central Excise Act, 1944, read with Rule 14 of the Cenvat Credit rules, 2004 - Held that - The fact that the Cenvat Credit has been taken over a period of 6 months shows that they continued filing wrong declarations suppressing the facts and misdeclared the fact of wrongly availing the Cenvat Credit in their ER-I declarations - reliance placed in the case of M/s Mahindra Sona ltd. Vs. CCE, Nashik 2016 (4) TMI 1149 - CESTAT MUMBAI , where it was held that the onus of taking credit correctly has been put on the appellant and this self assessment memorandum requires them to take the credit correctly and as per law. The above decision is squarely applicable in the instant case as elements for invoking extended period and penalty under Sec. 11AC are identical. Hence, the plea of the appellant that they had no intention to suppress is not tenable. Appeal dismissed - decided against appellant.

Issues:
1. Availment of double Cenvat Credit.
2. Allegation of willful suppression of facts.
3. Disallowance and confirmation of demand.
4. Imposition of interest and penalty.
5. Appeal against Order-in-Original.
6. Contesting the penalty.
7. Onus of bonafide conduct in self-assessment.
8. Intention to evade payment of Central Excise.
9. Responsibility to ensure correct Cenvat Credit.
10. Applicability of case laws.
11. Dismissal of the appeal.

Issue 1: Availment of double Cenvat Credit
The appellants were found to have availed double Cenvat Credit on input services, totaling to ?5,72,194, in violation of Cenvat Credit Rules, 2004. The issue arose when it was observed during an audit that the appellants had availed the credit twice on the same documents, leading to a demand for the excess credit.

Issue 2: Allegation of willful suppression of facts
The appellants were alleged to have willfully suppressed the fact of double availment of Cenvat credit from the department with an intent to evade duty. This allegation led to the invocation of the proviso to Section 11A(1) of the Central Excise Act, 1944, read with Rule 14 of the Cenvat Credit rules, 2004.

Issue 3: Disallowance and confirmation of demand
A show cause notice was issued, and the adjudicating authority disallowed and confirmed the demand of excess Cenvat credit, along with ordering the appropriation of the amount paid by the appellants against the demand. Additionally, interest and penalties were imposed on the appellants.

Issue 4: Imposition of interest and penalty
The appellants were aggrieved by the imposition of interest and penalty, leading them to file an appeal against the Order-in-Original. The Ld. Commissioner (Appeals) upheld the original order, resulting in the appellants challenging the decision in further appeal.

Issue 5: Appeal against Order-in-Original
The appellants contested the penalty imposed, arguing that they had already paid duty and interest before the issuance of the show cause notice. They relied on various case laws to support their contention and challenge the penalty aspect of the decision.

Issue 6: Contesting the penalty
The appellants focused their appeal on contesting the penalty, emphasizing that their prior payment of duty and interest should be considered as a mitigating factor. They argued that their actions did not demonstrate an intention to suppress facts, citing case laws in their support.

Issue 7: Onus of bonafide conduct in self-assessment
The argument presented by the Ld. AR emphasized that in the self-assessment regime, the onus was on the assessee to act in a bonafide manner. The AR highlighted discrepancies in the appellant's declarations and actions, pointing out the need for vigilance in self-assessment processes.

Issue 8: Intention to evade payment of Central Excise
The core question revolved around whether the appellants had the intention to evade payment of Central Excise by availing double Cenvat Credit. The judgment analyzed the explanations provided by the appellants and assessed the presence of any deliberate intent to suppress facts.

Issue 9: Responsibility to ensure correct Cenvat Credit
The judgment highlighted the responsibility of the assessee to ensure the correct availing of Cenvat Credit based on proper documents, as mandated by Rule 9(6) of the Cenvat Credit Rules, 2004. The failure to discharge this burden was a critical factor in the decision-making process.

Issue 10: Applicability of case laws
Both parties relied on various case laws to support their arguments regarding the penalty imposition and intention to suppress facts. The judgment scrutinized these references to determine their relevance and applicability to the present case.

Issue 11: Dismissal of the appeal
After a thorough analysis of the facts, explanations, and legal provisions, the judgment concluded that the appeal filed by the appellants did not succeed. The dismissal of the appeal affirmed the imposition of penalties and interest, based on the findings related to the incorrect availing of Cenvat Credit and the apparent intention to evade payment.

This detailed analysis covers the various issues involved in the legal judgment, providing a comprehensive overview of the case, arguments presented, and the final decision rendered by the Appellate Tribunal.

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