2018 (11) TMI 720 - AT - Central Excise

Reversal of Cenvat Credit - Removal of crushing and screening machinery and plants - the Central Excise officers observed that the amount of Central Excise duty paid on removal of goods to the buyer was less than the amount recredited in the Cenvat register at the time of receipt of the goods from the godown - Rule 16 (2) of the Central Excise Rules, 2002 - Penalty - Held that - Rule 16 of the Central Excise Rules, 2002 deals with the situation of taking of credit of duty on the goods brought to the factory. Subrule (2) of the said rules provides that if the process does not amount to manufacture in respect of the receipted goods in the factory, then on removal of the same goods again from the factory, equal amount of credit taken should be reversed. Since on receipt of the goods in the factory, the appellant had availed Cenvat Credit of the duty amount indicated in the original invoices issued to the godown, the appellant was required to pay/reverse the equal amount of Cenvat Credit so availed, at the time of removal of the same goods from the factory to the buyer s premises - Decided against appellant. Penalty u/r 25 of the CER 2002 read with Section 11 AC of the CEA 1944 - Held that - Considering the fact that during the relevant period, the appellant had paid excess duty of about 15 lakhs in respect of clearances of the goods, it cannot be said that short payment of duty in respect of the disputed consignment was attributable to the reason of fraud, collusion, suppression of facts etc., with intent to defraud Government revenue - provisions of Rule 25 of the Central Excise Rules, 2002 read with Section 11 AC of the Central Excise Act, 1944 cannot be invoked - penalty set aside. Appeal allowed in part.

Summary

Issues:
- Disputed Cenvat Credit availed by the appellant on goods removed and returned to the factory.
- Applicability of Rule 16(2) of the Central Excise Rules, 2002.
- Adjustment of excess duty paid on some consignments against disputed consignments.
- Imposition of penalty on the appellant.

Analysis:
1. The appellant, engaged in manufacturing excisable goods, had removed machinery to a godown and later returned to the factory, availing Cenvat Credit on the duty paid. The department contended the appellant must reverse the credit as per Rule 16(2) of the Central Excise Rules, leading to a demand of ?4,79,991. The Ld. Commissioner upheld this demand, prompting the appellant's appeal.

2. The appellant argued they had actually overpaid duty on some consignments, balancing the alleged shortfall. Citing precedents, the appellant claimed no duty shortfall existed. The Revenue countered, stating the appellant should have reversed the credit upon removal of the goods to the buyer.

3. Rule 16(2) mandates reversal of credit if goods are not manufactured upon re-entry to the factory. The appellant's situation fell under this rule as the goods were not processed. The tribunal found no fault in confirming the duty liability. The argument of adjusting excess duty paid on other consignments against the disputed ones was dismissed, as each consignment's duty is determined separately.

4. While the duty liability was upheld, the tribunal set aside the penalty. It noted the absence of intent to defraud the revenue, as the appellant had paid excess duty during the period. Therefore, invoking penalty provisions was deemed inappropriate.

5. The tribunal partly allowed the appeal, overturning the penalty imposition but maintaining the duty liability confirmation. This decision was based on a thorough analysis of the legal provisions and factual circumstances presented in the case.