2019 (6) TMI 509 - AT - Central Excise

Short payment of Excise duty - goods manufactured and cleared at the rate of 10% against the actual rate of 12% - demand of differential duty alongwith interest and penalty - HELD THAT - At the time of clearance from the factory, the chargeable rate of duty was 12% ad valorem on finished energy meters but the appellant had only paid 10% and therefore, both the authorities have rightly demanded the differential duty of 2% - there is no infirmity in the impugned order passed by the Commissioner demanding the differential duty from the appellant because the appellant has failed to prove that after rectification, the appellant got the goods back from the supplier - demand alongwith interest upheld. Penalty - HELD THAT - The imposition of penalty of ₹ 1,25,479/- on the appellant under Rule 25 of the Central Excise Rules, 2002 is not justified in the present case because there is no malafide intention of the appellant to evade payment of duty. The appellant was under a bona fide belief that since he has not sold the goods to the original supplier and he has mentioned in the invoices NOT FOR SALE and has reversed the same duty which was availed as CENVAT credit - penalty set aside. Appeal allowed in part.

Summary

Issues:
- Differential duty payment on goods clearance
- Interpretation of goods return for replacement
- Imposition of penalty under Central Excise Rules

Differential Duty Payment on Goods Clearance:
The appeal was against an order rejecting the appellant's appeal regarding the payment of differential duty on the clearance of goods. The appellant had cleared goods at a lower duty rate than the actual rate, leading to a demand notice for the differential duty. The lower authority confirmed the demand, imposing a penalty as well. The appellant argued that they had only removed defective inputs and not sold finished goods, thus not liable for the higher duty rate. However, the tribunal found that the appellant had assembled inputs into finished goods, which were then returned for rectification/replacement, constituting a sale of finished goods. As the appellant failed to prove they received the rectified goods back, the differential duty was upheld.

Interpretation of Goods Return for Replacement:
The appellant contended that the goods returned for replacement were not sold but were defective inputs sent back to the supplier. The tribunal noted that the appellant failed to prove the receipt of rectified goods, leading to the conclusion that the transaction involved the sale of finished goods. The invoices indicating "Rejected materials returned to Original Supplier within Guarantee period" were not sufficient to establish that the goods were not sold. The tribunal upheld the authorities' decision that the appellant had cleared manufactured goods at a lower duty rate, justifying the demand for the differential duty.

Imposition of Penalty under Central Excise Rules:
Regarding the penalty imposed on the appellant under Rule 25 of the Central Excise Rules, 2002, the tribunal found that there was no malafide intention to evade duty. The appellant believed they were not liable for the higher duty rate due to the nature of the transaction and had reversed the CENVAT credit accordingly. As there was no intention to evade duty, the tribunal set aside the penalty while confirming the demand for the differential duty along with interest. The appeal was dismissed except for dropping the penalty, based on the appellant's genuine belief and actions in reversing the availed duty credit.

(Order was pronounced in Open Court on 10/06/2019)