2016 (12) TMI 1521 - AT - Central Excise

Reversal of Cenvat credit on CVD - Rule 26 of Central Excise Rules, 2002 - Interest - Penalty - the Appellants are eligible to avail credit on the inputs which were brought to the factory with intention to use in the manufacture of finished goods but soon after they came to know that the inputs could not be used and required to be destroyed, they should have reversed the credit voluntarily under intimation to the department. Having continued to retain the credit after destruction of the same till being pointed out by the department, in my opinion, cannot be construed as a bonafide act. - Levy of interest and penalty confirmed. In the absence of any valid reason and specific evidence against the employee Shri K.D. Dholakia, penalty imposed on him is set-aside - Decided against the assessee.

Summary

Issues:
- Appellants availed CENVAT credit on inputs later destroyed
- Imposition of penalty and interest on the Appellant company
- Personal penalty imposed on an employee

Analysis:

Issue 1: Appellants availed CENVAT credit on inputs later destroyed
The case involved the appellants, engaged in the manufacture of Pharmaceutical products, who availed CENVAT credit of CVD paid on inputs received under advance authorisation during 2006-07. The inputs, which could not be used in the manufacture of finished products, were later destroyed in the factory without reversing the credit initially. The department pointed out the non-reversal, leading to the appellants reversing the credit of a specific amount. A show cause notice was then issued, resulting in the confirmation of the demand with interest and equal penalty on the Appellant Company. The issue revolved around whether the non-reversal of credit until pointed out by the department was a deliberate act to evade duty payment.

Issue 2: Imposition of penalty and interest on the Appellant company
The appellant argued against the imposition of penalty and interest, contending that they had reversed the credit promptly upon being informed by the department, without any intent to evade duty payment. The appellant's representative highlighted that the reversal was made as soon as the oversight was brought to their attention, indicating no deliberate attempt to avail the credit unlawfully. On the contrary, the Revenue's representative argued that the appellant should have voluntarily reversed the credit upon realizing the non-usability of the inputs, rather than waiting for the department's intervention. The contention was whether the delay in reversing the credit amounted to suppression of information and warranted the penalty and interest imposed on the Appellant Company.

Issue 3: Personal penalty imposed on an employee
Regarding the personal penalty imposed on the employee, the appellant's representative asserted that there was no evidence linking the employee to the non-reversal of CENVAT credit. The argument was based on the lack of proof showing the employee's involvement in the decision-making process related to the credit reversal. Ultimately, the Tribunal found that while the penalty on the Appellant Company was justified due to the delayed reversal of credit after the inputs were destroyed, the personal penalty on the employee was set aside due to the absence of valid reasons and specific evidence against the employee, indicating no direct association with the non-reversal of credit.

In conclusion, the Tribunal rejected the appeal filed by the appellant Company but allowed the appeal of the employee, setting aside the penalty imposed on him.