2017 (3) TMI 772 - AT - Central Excise

Benefit of 25% penalty - Held that - the expression subject to the provisions of Section 11AC of the Act in Rule 25(1) of Central Excise Rules 2002 would make it clear that the option u/s 11AC of the Act would apply in Rule 25 of the Rules. Further it is well settled that Rules cannot travel beyond the Act. Therefore the appellant is entitled to exercise the option to pay the penalty 25% of the duty in terms of Section 11AC of the Act read with Rule 25 of Central Excise Rules - appeal allowed - decided in favor of appellant.

Summary

Issues:
Recovery of Education Cess and Higher Education Cess on the amount paid under Rule 6(3) of the Cenvat Credit Rules.

Analysis:
The case involved the appellant, engaged in the manufacture of plastic tanks and rigid PVC pipes, who cleared goods without payment of Central Excise duty under an exemption notification for a water supply project. The appellant believed the supplies were covered by Rule 6(6) of the Cenvat Credit Rules and did not comply with Rule 6(2) and Rule 6(3) of the Rules. A Show Cause Notice was issued for recovery under Rule 6(3)(b) of the Rules, which was confirmed by the Adjudicating Authority. The Authority imposed a penalty under Rule 25(1) of the Central Excise Rules, 2002, with an option to pay a reduced penalty if the duty amount was paid within 30 days. On appeal, the Commissioner(Appeals) modified the demand, leading to the present appeal.

During the appeal, the appellant contended that Education Cess and Higher Education Cess should not be calculated on the duty amount paid under Rule 6(3) of the Cenvat Credit Rules. The Commissioner(Appeals) accepted this contention, noting that Rule 25 of the Central Excise Rules, 2002 did not provide for a penalty reduction even if the duty was paid with interest and 25% penalty within the specified period.

The Revenue, represented by the ld.AR, supported the orders of the lower authorities. After hearing both sides, the Tribunal observed that the decision of the Adjudicating Authority should not be reversed lightly. The appeal primarily focused on the issue of Education Cess and Higher Education Cess on the amount paid under Rule 6(3) of the Cenvat Credit Rules. The Tribunal agreed with the appellant's argument that the Cess should not be calculated on this amount as it was not a duty of excise. The Tribunal also noted that the Adjudicating Authority's option to pay a reduced penalty was valid, and the appellant could exercise this option in accordance with Section 11AC of the Act read with Rule 25 of the Central Excise Rules. Consequently, the appeal filed by the appellant was allowed, and the decision was pronounced in open court.