2008 (8) TMI 374 - HC - Central Excise

Whether Rule 3(4) of Cenvat Credit Rules, 2002 is applicable on capital goods removed after use ? Whether the impugned order passed by Tribunal is perverse and against the basic scheme of the Cenvat ? Whether appellant is liable to penalty when no mens rea is involved? Held that - Considering the fact that the Tribunal in a number of cases has taken a view, on the legal issue involved in the present case, in favour of the assessees therein and in the present case, the appeal of the Revenue was accepted for the reason that the assessee remained unrepresented before the Tribunal, we find that ends of justice in the present case would be met in case the matter is remitted back to the Tribunal to consider the appeal filed by the Revenue afresh after hearing both the parties. For the reasons mentioned above, order dated 20-11-2007 passed by the Tribunal is set aside. The Tribunal is directed to hear and decide the appeal filed by the Revenue afresh after giving notice to the parties.

Summary

Issues:
1. Applicability of Rule 3(4) of Cenvat Credit Rules, 2002 on capital goods removed after use.
2. Perversity of the impugned order passed by the Tribunal against the basic scheme of Cenvat.
3. Liability of the appellant to penalty when no mens rea is involved.

The judgment revolves around an appeal filed under Section 35G of the Central Excise Act, 1944 against an order by the Customs, Excise & Service Tax Appellate Tribunal. The appellant, engaged in manufacturing non-alloy steel ingots, availed Modvat credit on the duty paid for an induction furnace purchased in 1994. The furnace was used until 2003 and then sold as scrap. A demand notice was issued to recover the difference in duty paid and availed credit. The adjudicating authority confirmed a demand of Rs. 98,000 against the appellant. However, in an appeal before the Commissioner (Appeals), the order was set aside.

The Revenue appealed to the Tribunal, citing Rule 3(4) of the Cenvat Credit Rules. Due to the appellant's absence during the hearing, the Tribunal accepted the Revenue's appeal and set aside the Commissioner (Appeals) order. The appellant argued that Rule 3(4) prevented duty imposition as the capital goods were used for several years before being disposed of as scrap. Reference was made to previous Tribunal decisions favoring such interpretations. The appellant contended that a different view by the Tribunal required referral to a Larger Bench.

The Revenue acknowledged the Tribunal's favorable views in previous cases but emphasized the lack of appellant representation during the hearing. The Court, considering the consistent favorable views in similar cases, set aside the Tribunal's order and remitted the matter back for fresh consideration after hearing both parties. Consequently, the Tribunal was directed to reevaluate the appeal filed by the Revenue after providing notice to all concerned parties. The appeal was disposed of accordingly.