2017 (5) TMI 509 - AT - Central Excise

Interest - penalty - suppression of facts - N/N. 64/95-CE dt. 16.03.1995 and 10/97-CE dt. 01.03.1997 - case of appellant is that the FA, 2005 made with retrospective amendment, in that circumstances, the charges of suppression is not sustainable against the appellant - Held that - the issue on interest came before the Hon ble Apex court in the case of Star India Pvt. Ltd. Vs. CCE, Mumbai & Goa 2005 (3) TMI 10 - Supreme Court , where it was held that The liability to pay interest would only arise on default and is really in the nature of quasi-punishment. Interest liability can be prospective only. - interest set aside. On the issue of penalty, in appellant s own case 2010 (6) TMI 699 - CESTAT NEW DELHI , this Tribunal has held that it was not the case of the respondent that there was any case of fraud, wilful mis-statement, collusion or suppression of facts on the part of the appellants in utilizing the credit without complying with the requirement of Rule 6(2) of the said Rules, thus penalty cannot be levied - penalty set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against imposition of interest and penalty on appellant for suppression of facts under Notification No. 64/95-CE and 10/97-CE; Contesting payment of interest and penalty based on retrospective amendment in Finance Act, 2005; Applicability of interest and penalty in the case; Interpretation of Supreme Court and Tribunal decisions on retrospective liability of interest; Analysis of penalty imposition criteria under Rule 13(2) of Cenvat Credit Rules.

Analysis:
The appellant contested interest and penalty imposition, acknowledging the 8% liability on exempted goods but challenging additional charges. The appellant relied on the retrospective nature of the Finance Act, 2005, arguing against the sustainability of charges due to suppression. Citing the decision in the case of Star India Pvt. Ltd. Vs. CCE, Mumbai & Goa, the Tribunal held that interest is not chargeable retrospectively as it's quasi-punitive. The Tribunal further referenced the Pushti Refineries case, emphasizing that retrospective amendments cannot create offenses or liabilities retroactively, thus absolving the appellant of interest payment.

Regarding penalty imposition, the Tribunal analyzed Rule 13(2) of the Cenvat Credit Rules, emphasizing that penalties are only applicable in cases of fraud, willful misstatement, collusion, or suppression of facts with intent to evade duty. The Tribunal referenced the appellant's own case, highlighting that penalty imposition requires specific intent, which was not proven in this instance. Additionally, the Tribunal cited the case of CCE, Ludhiana Vs. Sangrur Agro Ltd., affirming that Section 11AC of the Central Excise Act does not apply to cases like the present one, where the issue pertains to the reversal of an excess amount claimed under the Cenvat Credit Rules. Consequently, the Tribunal concluded that penalty was not imposable on the appellant based on the established legal principles and precedents.

In summary, the Tribunal confirmed the appellant's liability for 8% of exempted goods but set aside the demands for interest and penalty. The judgment was based on the retrospective nature of the Finance Act, 2005, and the absence of evidence supporting penalty imposition criteria under Rule 13(2) of the Cenvat Credit Rules.