2019 (10) TMI 14 - AT - Central Excise

Imposition of penalty - CENVAT Credit - input services - appellant has availed irregular CENVAT credit on certain input service bills - period April 2013 to July 2013 and in September 2013 - denial on account of nexus - HELD THAT - In the case of COMMR. OF C. EX., BANGALORE-I VERSUS GENEVA FINE PUNCH ENCLOSURES LTD. 2011 (1) TMI 746 - KARNATAKA HIGH COURT , the Hon ble High Court of Karnataka has held that Tribunal in the instant case on a careful consideration of the material on record has held firstly that there is no determination of duty. Secondly, the aforesaid requirement i.e., the cause of evasion of duty is not mentioned in the show cause notice. Further that the entire duty and interest was paid voluntarily on being pointed out. It held that no case for imposing the penalty is made out. The impugned order imposing the penalty is not sustainable in law - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Disallowance of CENVAT credit on certain input service bills.
- Justification for issuing show-cause notice post deposit of disputed amount.
- Applicability of Section 11A regarding reversal of CENVAT credit.
- Failure to establish suppression of fact with intent to evade duty.
- Imposition of penalty upheld by Commissioner(Appeals).

Analysis:
The appeal challenged the Commissioner(Appeals) order partly allowing the appellant's appeal and setting aside the demand of CENVAT credit of ?2,62,616 along with interest and proportionate penalty. The remaining portion of the Order-in-Original imposing penalty was upheld. The case involved the disallowance of CENVAT credit on certain input service bills by the appellants, who are engaged in manufacturing PSC Cement. The Department Auditors observed irregular CENVAT credit availed by the appellant, leading to a show-cause notice for recovery of the amount along with interest and penalty. The appellant contended that the disputed amount was deposited before the notice, citing Section 11A and various tribunal decisions to support the argument that the notice was unjustified.

The appellant further argued that there was no suppression of fact to evade duty, referencing tribunal decisions to strengthen their case. On the contrary, the Revenue defended the impugned order. The Hon'ble High Court of Karnataka's decision in a similar case was cited, emphasizing the need for determining liability to pay duty before imposing a penalty. The Tribunal's decision in the case of Oriental Aromatics Ltd. was also referenced, highlighting the non-applicability of penalty if duty demand is paid before the show-cause notice.

After considering submissions and perusing the record, the Hon'ble Member found the imposition of penalty unsustainable in law. Citing relevant precedents, the penalty was set aside, allowing the appeal of the appellant. The judgment emphasized the importance of determining duty liability before imposing penalties and upheld the decisions cited in support of setting aside the penalty. The final order was pronounced in open court on 12/09/2019.