2018 (5) TMI 200 - AT - Central Excise

CENVAT credit - fake invoices - invoices received from a large number of firms located in Ghaziabad and Noida without actual receipt of material - penalty on co-noticees, who do not approach the Settlement Commission and undergo the adjudication process - Held that - the appeals filed by present respondents can not be allowed on the ground that main accused got immunity from the Settlement Commission. The Commissioner (Appeals) is therefore required to examine the merits of the present case with the merits of the case against the main accused - appeal allowed by way of remand.

Summary

Issues:
Appeal against penalties imposed on respondents for fraudulent Cenvat credit; Main party granted immunity by Settlement Commission; Whether immunity extends to co-noticees who did not approach Settlement Commission.

Analysis:
1. The appeals were filed by the Revenue against an order passed by the Commissioner (Appeals) regarding penalties imposed on two respondents for fraudulent availment of inadmissible Cenvat credit. The main party, M/s Ind-Swift Limited, along with other co-noticees, approached the Settlement Commission and were granted immunity from penalties and prosecution. However, the two respondents in these appeals did not approach the Settlement Commission, leading to penalties being imposed on them by the adjudicating authority.

2. The Commissioner (Appeals) set aside the penalties on the present respondents, citing that since immunity was granted to the main accused, penalties under Rule 25 of Central Excise Rules for the present respondents were not warranted. This decision was based on a judgment by CESTAT, Mumbai in a similar case. The Revenue appealed this decision, arguing that immunity granted to the main party should not automatically extend to co-noticees who did not approach the Settlement Commission.

3. The Tribunal considered the judgment in the case of Mamta Garg vs. Commissioner of C.Ex., Noida, which clarified that immunity given to the main party by the Settlement Commission cannot be automatically extended to co-noticees who did not approach the Commission. The Tribunal also referred to the judgment in the case of Shri S.K. Colombowala to support this interpretation.

4. The Tribunal further analyzed the issue of penalty waiver for co-noticees who undergo adjudication without approaching the Settlement Commission. Referring to a difference of opinion case, the Tribunal emphasized that if the cause of action and the offense are distinct for each individual, no automatic immunity should be extended to co-noticees, even if the main party receives immunity.

5. Based on the above analysis and following the judgment in the case of Mamta Garg, the Tribunal held that the appeals filed by the present respondents cannot be allowed solely on the ground of the main accused receiving immunity. The Commissioner (Appeals) was directed to re-examine the case, considering the distinctiveness of the offenses involved and to provide reasoned analysis and findings on the merits of the case against the present respondents.

6. Consequently, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for fresh adjudication, emphasizing the need for a thorough examination of the case against the present respondents in light of the directions provided.

7. The appeal was disposed of by way of remand, ensuring proper opportunity for the respondents to defend their case and requiring the Commissioner (Appeals) to conduct a detailed review in accordance with the Tribunal's directions.