2015 (9) TMI 874 - AT - Central Excise

Levy of penalty - Benefit of area based exemption under Notification No. 56/2002-CE dated 14.11.2002 - payment of Education Cess or Secondary & Higher Education Cess - Held that - Issue of interpretation of the Notification is pending before the Supreme Court. On such circumstances the assessee cannot be found fault with if he has taken refund/credit of the Education Cess & S.H.E. Cess. The commissioner (Appeals) has set aside the penalty for the reason that there are conflicting judicial decisions on the issue and therefore no malafide, or intention to evade duty can be attributed. - No penalty - Decided against Revenue.

Summary

Issues:
Challenge to penalty imposed under Rule 25(1)(a) and (d) of Central Excise Rules, 2002 for availing self credit of Education Cess and S.H.E. Cess under Notification No. 56/2002-CE.

Analysis:

1. Issue of Penalty Imposed:
The Revenue challenged the penalty imposed under Rule 25(1)(a) and (d) of Central Excise Rules, 2002, for availing self credit of Education Cess and S.H.E. Cess under Notification No. 56/2002-CE. The Respondents, engaged in the manufacture of Cocoa products, contended that they debited a portion of the Cess amounts under protest and had not received any refund orders for the remaining amounts. The adjudicating authority confirmed the demand and imposed a penalty of 48,00,000/-.

2. Appeal and Confirmation of Demand:
Aggrieved by the decision, the Respondents appealed before the Commissioner (Appeals), who confirmed the demand but set aside the penalty. The Revenue then appealed challenging the order that set aside the penalty, leading to the present case before the Appellate Tribunal CESTAT NEW DELHI.

3. Interpretation of Notification No. 56/2002-CE:
During the hearing, it was highlighted that there were conflicting views on whether Education Cess and S.H.E. Cess were exempted under the said notification. The Revenue relied on a previous case to support their stance, while the Respondents cited various judgments and pending appeals before the Supreme Court to argue that the issue was still unresolved. The Commissioner (Appeals) set aside the penalty, considering the conflicting judicial decisions and lack of malicious intent to evade duty.

4. Decision and Dismissal of Appeal:
The Appellate Tribunal, after considering the arguments and precedents, found no fault with the Commissioner (Appeals)'s decision to set aside the penalty. Consequently, the appeal filed by the Revenue was dismissed, affirming the decision of the lower authority. The Tribunal concurred with the view that the conflicting interpretations of the notification justified the Respondents' actions regarding the Cess amounts, leading to the dismissal of the Revenue's appeal.

In conclusion, the judgment upheld the setting aside of the penalty imposed on the Respondents for availing self credit of Education Cess and S.H.E. Cess under Notification No. 56/2002-CE, emphasizing the unresolved interpretation issues surrounding the exemption notification.