2012 (11) TMI 638 - AT - Central Excise

Demand of duty, interest and penalty extended period of limitation Held that - Neither the show cause notice nor the order-in-original has brought any cogent evidence that the appellant knowingly manufactured goods not fit for consumption - There is no testing of goods done at any stage. When the intention to cause evasion remained absent, the belated show cause notice dated 25-1-2010, in absence of any mala fide shall not bring the appellant to the fold of law - Neither any cogent evidence nor suppression brought on record to penalize the appellant. In absence of wilful breach of law, the penalty proceedings became unsustainable

Summary

Issues:
1. Whether the appellant is required to reverse the Cenvat credit availed on goods returned as waste.
2. Whether the show cause notice establishes the intention of evasion by the appellant.
3. Application of Rule 16 of Central Excise Rules, 2002 regarding testing of returned goods.
4. Justification for the demand raised, interest, and penalty imposed.
5. Validity of the belated show cause notice and absence of evidence for penalizing the appellant.

Analysis:
1. The appellant cleared goods on payment of duty, but when the goods were returned as waste and deemed unfit for consumption, the appellant reversed the Cenvat credit of Rs. 1,02,253/- availed on those goods. The issue revolved around whether the reversal of Cenvat credit was warranted under the law in such circumstances.

2. The appellant's counsel argued that the show cause notice did not specify any intention of evasion by the appellant, as required under Section 11A of the Central Excise Act, 1944. The counsel relied on a previous decision of the Apex Court to support this argument. The absence of clear evidence of intent to evade duty raised questions about the validity of the notice.

3. The Departmental Representative contended that under Rule 16 of the Central Excise Rules, 2002, the appellant was obligated to reverse the Cenvat credit on the returned goods without the need for testing. This raised the issue of whether Rule 16 applied in the present case and if testing of the returned goods was necessary.

4. The demand of Rs. 1,02,253/- along with interest and penalty equal to the duty amount was imposed. The judgment questioned the delay in raising the issue, lack of testing of the goods, and absence of evidence indicating willful intent to evade duty. The validity of the demand, interest, and penalty was scrutinized based on the evidence and circumstances presented.

5. The judgment highlighted that the belated show cause notice lacked substantial evidence of willful breach of law or intent to evade duty. The absence of mala fide intentions, coupled with the mere audit advice triggering the notice, raised doubts about penalizing the appellant. Ultimately, the penalty proceedings were deemed unsustainable due to the lack of evidence supporting intentional wrongdoing. The appeal was allowed, confirming the reversal of Cenvat credit as required by law.