2017 (6) TMI 201 - AT - Central Excise

Penalty u/r 15(2) of CCR 2004 - reversal of CENVAT credit - suppression of facts or not? - Held that - the appellant reversed the CENVAT credit on being pointed out by the audit party along with interest and also informed the department about the same before the issue of SCN. In such a situation, as per Sub-section (2B) of Section 11A, the adjudicating authority should not have issued the SCN - in the SCN as well as in the impugned order, nothing has been brought on record to show that there was deliberate suppression of facts with malafide intention to evade payment of duty - the imposition of equal penalty under Rule 15(2) of the CENVAT Credit rules is not sustainable in law - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Irregular credit of CENVAT
- Allegations of suppression of information
- Demand confirmation and penalty imposition
- Compliance with legal provisions and judicial precedents
- Applicability of Section 11A and Rule 14
- Validity of penalty imposition under Rule 15(2)

Irregular credit of CENVAT:
The case involved the manufacture of excisable goods where the appellants made a provision to write off non-moving inputs valued at a specific amount in their books of accounts. The CENVAT credit availed on these inputs was not reversed as required by the CENVAT Credit Rules 2004. This led to the issuance of a show-cause notice and subsequent confirmation of demand, interest, and penalty by the adjudicating authority.

Allegations of suppression of information:
The appellant argued that the proceedings initiated were contrary to legal provisions and lacked a deliberate suppression of facts or malafide intention to evade payment of duty. The appellant reversed the CENVAT credit, paid interest, and informed the department before the show-cause notice was issued. The appellant contended that the balance-sheet finalization and subsequent payment of CENVAT were done promptly, indicating no intention to evade payment.

Demand confirmation and penalty imposition:
The Commissioner and the adjudicating authority upheld the demand confirmation and penalty imposition based on the alleged irregular credit of CENVAT. The appellant challenged the imposition of an equal penalty under Rule 15(2) of the CENVAT Credit Rules 2004, arguing that the penalty was wrong and illegal.

Compliance with legal provisions and judicial precedents:
The appellant cited relevant legal provisions, including Sub-section (2B) of Section 11A of the Central Excise Act 1944, to support their argument that the show-cause notice should not have been issued once the duty and interest were paid and the department informed. Judicial precedents were referred to in support of the appellant's position on compliance with legal provisions and precedents.

Applicability of Section 11A and Rule 14:
The judgment analyzed the applicability of Section 11A and Rule 14 in the context of the case, emphasizing the timely reversal of CENVAT credit and payment of interest by the appellant. The judgment highlighted that the initiation of penalty proceedings was not maintainable under Section 28(2B) of the Customs Act and Section 11A if duty and interest were paid before the show-cause notice.

Validity of penalty imposition under Rule 15(2):
After considering the submissions and legal arguments, the judgment concluded that the imposition of an equal penalty under Rule 15(2) of the CENVAT Credit Rules 2004 was not sustainable in law. The penalty imposition was set aside, providing consequential relief to the appellant.

In conclusion, the judgment addressed various legal aspects, compliance issues, and penalty imposition concerns related to the irregular credit of CENVAT, ultimately ruling in favor of the appellant regarding the penalty imposition under Rule 15(2).