2018 (1) TMI 527 - AT - Central Excise

Penalty - Section 11AC of the Central Excise Act 1944 read with Rule 15(2) of the Cenvat Credit Rules 2004 - Held that - from the facts of this case when there was also always sufficient excess balance in the cenvat credit account of the respondent herein of the amounts which were found to be ineligible were reversed there cannot be any mala fide intention attributable to the respondent for availment of cenvat credit twice or in one case thrice - appeal dismissed - decided against Revenue.

Summary

Issues: Setting aside of penalty by the first appellate authority under Section 11AC of the Central Excise Act, 1944 read with Rule 15(2) of the Cenvat Credit Rules, 2004.

Analysis:
The appeal was filed by the Revenue against the order-in-appeal No.CD/187/M-II/16 dated 9.3.2016. The issue pertained to the setting aside of the penalty by the first appellate authority. The respondent, a Government of India Undertaking, had availed cenvat credit on various inputs and input services. An audit revealed that the respondent was not eligible for a cenvat credit of ?35,01,878/-, which was subsequently reversed. The adjudicating authority confirmed the demand raised, appropriated the amounts paid by the appellant, and imposed a penalty under Section 11AC read with Rule 15(2) of the Cenvat Credit Rules, 2004. The first appellate authority set aside the penalty, and the Revenue did not appeal the dropping of the demand for interest. The Revenue contended that the penalty should not have been set aside based on the absence of mala fide intention, citing a previous case involving a Public Sector Undertaking. However, the counsel for the respondent referred to a judgment by the Hon’ble High Court of Bombay in a similar case, where the penalty under Section 11AC was held to be inapplicable.

Upon reviewing the submissions, the Member (Judicial) found that the issue revolved around the imposition of the penalty. Despite the adjudicating authority imposing the penalty under Section 11AC of the Central Excise Act, 1944, it was noted that the respondent always maintained sufficient balance in the relevant accounts. The first appellate authority had set aside the penalty, and the Member (Judicial) agreed with this decision. It was observed that there was no mala fide intention on the part of the respondent, especially considering the excess balance in the cenvat credit account. The Member (Judicial) acknowledged the precedent set by the Hon’ble High Court of Bombay in a similar case involving the appellant, where the penalty under Section 11AC was deemed inapplicable. Consequently, the impugned order setting aside the penalty was upheld, and the appeal was rejected.