2018 (5) TMI 1618 - AT - Central Excise

Penalty - duty paid before issuance of SCN - Section 11A(2) of CEA - Held that - Since the duty was paid along with interest before issue of SCN the appellant is entitled to the benefit of Section 11A(2) whereby it is provided that if the duty is paid along with interest then the Department should not issue the show-cause notice unless there is a fraud or suppression or willful misstatement - In the present case the Department has not been able to establish that there was a wilful misdeclaration with intent to evade payment of duty - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against rejection of appeal by Commissioner (Appeals) upholding Order-in-Original regarding irregular CENVAT credit availment and penalty imposition under CCR read with CEA.

Analysis:
The appeal involved the challenge against the Commissioner (Appeals) order rejecting the appellant's appeal and upholding the Order-in-Original related to the irregular availing of CENVAT credit and imposition of penalty under CCR read with CEA. The appellant, engaged in manufacturing telecom products, faced objections during a Department audit for wrongly availing CENVAT credit. The appellant paid the disputed amount along with interest before a show-cause notice was issued. The Order-in-Original confirmed the demand but imposed a penalty, which the appellant contested. The appellant argued that the notice was time-barred under Section 11A(1) of CEA and the extended limitation period was not applicable due to no fraud or suppression. The appellant emphasized the timely payment post-audit objection, citing legal precedents to support no suppression of facts. The AR contended that the appellant concealed the credit availment, justifying the penalty imposed by the Commissioner (Appeals).

The Judicial Member analyzed the submissions and records, noting the immediate payment by the appellant upon audit objection. Referring to Section 11A(2), it was highlighted that duty payment with interest before a show-cause notice precludes issuance unless fraud or suppression is proven. Citing various legal decisions, it was established that payment with interest negates the need for a notice in the absence of fraud or suppression. The Member found no evidence of willful misdeclaration to evade duty, aligning with the legal principles cited. Consequently, the Member set aside the impugned order, allowing the appellant's appeal based on the entitlement to Section 11A(2) benefits due to the timely payment made pre-notice issuance.

In conclusion, the judgment favored the appellant by ruling the impugned order unsustainable in law and overturning it, emphasizing the importance of timely duty payment with interest in precluding show-cause notices absent fraud or suppression. The legal analysis underscored the significance of adherence to statutory provisions and established case law in determining the validity of penalty imposition and appeal outcomes in matters concerning CENVAT credit availment and duty payment obligations under CCR and CEA.