2023 (10) TMI 428 - HC - Central Excise

Wrongful availment of CENVAT credit - Removal of machinery after two days of taking credit - Failure to correctly interpret and apply the provisions of Rule 4, Rule 11A, 11AB and 11AC of the Cenvat Credit rules, 2002 - suppression/mis-statement of facts - extended period of limitation - HELD THAT - The Appellate Tribunal, after considering the contentions of the parties held that the appellant had availed 50% of the credit on both the Autoconers at their Baddi plant on 29.01.2002; after availing credit on both the machines if there was transfer of one of the two Autoconers to Guna plant during 2001-2002, the right course would have been to debit the full credit of Rs. 5,62.949/- pertaining to the transfer of Autoconer and to take its full credit at the Guna plant - The Tribunal held that the fact of removal of one Autoconer to Guna Plant, which took place within two days of taking credit, was not brought to the notice of Central Excise Authorities, and it was detected only during the course of audit, and so the levy of penalty by the Commissioner of Appeals was sustainable. Thus, the question of Tribunal incorrectly interpreting and applying provisions of Rule 4 of the Cenvat Credit Rules 2002, Section 11A, 12 AB and 11AC of the Act does not arise. In the instant case, the appellant does not deny the transfer of one Autoconer from the Baddi Plant to the Guna Plant in the State of Himachal Pradesh on 31.01.2002, having availed 50% of the credit duty paid on both the Autoconers at Baddi on 29.01.2002. The finding of the Tribunal that this was detected by the audit and only then the explanation was offered by the appellant is not disputed by the appellant - the Tribunal did not err in holding that after availing credit on both the machines, if there was transfer of one of the two Autoconers to Guna plant during 2001-2002, the right course would have been to debit the full credit of Rs. 5,62,949/- pertaining to the transfer of Autoconer, and to take its full credit at the Guna Plant, and this view is consistent with Rule 4 (2) (a) of the Cenvat Credit Rules, 2002 - The fact of removal of one Autoconer to Guna plant, which took place within two days of taking credit, was not brought to the notice of the Central Excise Authorities, and it was detected only during the course of audit. As such there is nothing wrong if penalty is levied on the appellant either. Appeal dismissed.

Summary

Issues Involved:
1. Interpretation and application of provisions of Rule 4, Rule 11A, 11AB, and 11AC of the Cenvat Credit rules, 2002.

Summary:
The appellant, engaged in the manufacture of Man Made Yarn, availed Cenvat Credit facility under the Cenvat Credit Rules, 2002. During an audit, it was found that the appellant had availed Cenvat Credit on two Autoconers, transferring one to another unit without adjusting the credit properly. The Department alleged suppression of facts and wrongful availment of credit, leading to a show-cause notice for recovery and penalties under relevant provisions.

The Additional Commissioner confirmed the demand for Cenvat Credit recovery, interest, and imposed penalties, stating that the appellant had not adjusted the credit correctly after transferring one Autoconer. The Tribunal upheld this decision, emphasizing that the appellant had not followed the correct procedure as per Cenvat Credit Rules. The Tribunal found that the appellant had not disclosed the transfer of the Autoconer to the Guna plant, which was detected during an audit.

The High Court agreed with the Tribunal's findings, stating that the appellant should have debited the full credit pertaining to the transferred Autoconer and taken its full credit at the Guna plant. The Court held that the penalty imposed was justified due to the failure to disclose the transfer of the Autoconer. The Court dismissed the appeal, concluding that there was no merit in challenging the Tribunal's decision regarding the interpretation and application of the Cenvat Credit Rules.

In conclusion, the Court upheld the decision against the appellant, emphasizing the importance of adhering to the Cenvat Credit Rules and disclosing relevant information to the authorities to avoid penalties and recovery actions.