2010 (4) TMI 476 - HC - Central Excise

Evasion of duty - The petitioner is the manufacturer of automative electrical items having its manufacturing unit in Puducherry. The Superintendent of Central Excise informed the petitioner that, the electronic returns filed by the petitioner showed that the CENVAT credit availed appeared high when compared to the utilisation, hence, the petitioner was directed to produce documents relating to the CENVAT credit availed from the months January, 2008 to October, 2009 along with the statement for further verification. Impugned order passed considering conduct of assesese and violation committed knowingly. Held that - in the context of the evidence of B. Gnanasekaran and subsequent statement of CEO, Bajpai, it is difficult to accept the statement of Bajpai that when the petitioner had made the differential duty with interest, they should be exonerated from the consequences of violation. In the circumstances, thus reject the plea of the petitioner. It is pointed out by the learned counsel for the petitioner that without the copies of the Commissioner s recommendation given, order have been passed. If the petitioner has any such grievance, it is open for them to approach the Central Excise Board for necessary redressal including the review on the matter. If and when any such petition is filed, it is open to the Board to pass orders, as they deem fit.

Issues Involved:
1. Excessive CENVAT credit availed by the petitioner.
2. Imposition of restrictions under Notification No. 32/2006.
3. Legality of the administrative actions taken by the Revenue.
4. Petitioner's contention against the imposed restrictions.
5. Compliance with procedural requirements by the Revenue.

Detailed Analysis:

1. Excessive CENVAT credit availed by the petitioner:
The petitioner, a manufacturer of automotive electrical items, was informed by the Superintendent of Central Excise that the CENVAT credit availed appeared high compared to utilization. Upon review, the petitioner admitted to availing CENVAT credit incorrectly, resulting in short payment of excise duty from July 2008 onwards. The petitioner remitted Rs. 86,75,640.00 along with interest of Rs. 3,18,191.00 and requested the omission be regularized under Section 11A(2B) of the Central Excise Act, 1944.

2. Imposition of restrictions under Notification No. 32/2006:
Proceedings were initiated based on Notification No. 32/2006, dated 30th December 2006, which allows for withdrawal of facilities or imposition of restrictions for deliberate non-compliance. The notification outlines specific violations, including removal of goods without an invoice and without payment of duty, and taking CENVAT credit without receipt of goods. The Chief Commissioner recommended restrictions, and an order was passed requiring the petitioner to pay excise duty for each consignment at the time of removal from 11-1-2010 to 30-4-2010, and to stop payment of excise duty by utilizing CENVAT credit during this period.

3. Legality of the administrative actions taken by the Revenue:
The Revenue's actions were based on the petitioner's admitted removal of goods without payment of duty and incorrect availing of CENVAT credit. The order was deemed an administrative measure to discourage evasion of duty and ensure compliance with the law. The restrictions imposed were considered necessary to bring the petitioner in line with statutory requirements and to prevent future violations.

4. Petitioner's contention against the imposed restrictions:
The petitioner argued that the restrictions were arbitrary, harsh, and disproportionate, claiming the mistake was due to an employee's error without management's knowledge. The petitioner also contended that the case did not fall under any clauses of Notification No. 32/2006 and that the payment of duty with interest should absolve them of further consequences. The petitioner sought to quash the order dated 4-1-2010.

5. Compliance with procedural requirements by the Revenue:
The Revenue complied with the procedure outlined in Notification No. 32/2006, including the examination of evidence and submissions by the petitioner. The restrictions were imposed based on the conscious violation admitted by the petitioner, and the order was passed to protect the interest of the Revenue and ensure future compliance.

Conclusion:
The court dismissed the writ petition, agreeing with the Revenue's imposition of restrictions under Notification No. 32/2006. The court found that the petitioner had knowingly committed violations, and the restrictions were necessary to enforce compliance. The petitioner's payment of duty with interest did not absolve them of the violations. The court noted that the petitioner could approach the Central Excise Board for redressal if they had grievances regarding the Commissioner's recommendations.

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