2010 (1) TMI 483 - HC - Central Excise

Demand & Penalty - Diversion of duty free goods - CR coil manufactured out of duty free coil. Duty paid on HR coil when CR coil instead of export, cleared for home consumption. Duty paid on HR coil taken as credit in PLA, revenue contending that such irregular credit in PLA utilized for duty payment rendering HR coil non-duty paid. Credit availment in PLA instead of Cenvat Credit account held as minor procedural mistake by Tribunal and duty demand and penalty was set aside. Held that - Views taken by Tribunal agreed with. Issue involving mere procedural defect and substantial question of law not arises.

Summary

Issues:
1. Whether the Tribunal was right in allowing the appeal of the respondent assessee after treating the violation of statutory provision as minor procedural mistakes?
2. Whether the Tribunal was right in holding the respondent's action of taking CENVAT Credit in PLA instead of CENVAT Credit Account as a mistake despite being a breach of statutory provisions?

Analysis:
1. The case involved the Commissioner, Central Excise and Customs filing a Tax Appeal under Section 35-G of the Central Excise Act, 1944. The issue at hand was whether the Tribunal was correct in allowing the appeal of the respondent assessee after considering the violation of statutory provisions as minor procedural mistakes. The Revenue argued that the diversion of HR coils for home consumption without paying duty amounted to a violation of mandatory provisions rather than a procedural lapse. The Commissioner imposed a penalty on the assessee for this violation. However, the Tribunal viewed the matter differently, stating that the diversion of HR coils was a minor procedural mistake. The Tribunal set aside the penalty imposed by the Commissioner, considering it unjustifiable [2009 (246) E.L.T. 328 (Tri.-Ahmd.)].

2. The second issue revolved around the respondent's action of taking CENVAT Credit in PLA instead of the CENVAT Credit Account, which was a breach of statutory provisions. The Revenue contended that the respondent's failure to pay duty on diverted HR coils for home consumption was a serious violation. The Commissioner imposed a penalty on the assessee under Rule 25(1)(a) of the Central Excise Rules, 2002. However, the Tribunal deemed this action as a minor procedural mistake on the part of the respondent. The Tribunal held that the demand for duty exceeding Rs. 1 crore against the assessee was due to the mistake of taking credit in PLA instead of the CENVAT Credit Account. Consequently, the Tribunal set aside the penalty and allowed the appeal of the respondent with consequential relief.

In conclusion, the High Court agreed with the Tribunal's findings that the issues raised were merely procedural defects and did not give rise to any substantial questions of law. Therefore, the Court dismissed the appeal summarily, upholding the Tribunal's decision in favor of the respondent assessee.