2018 (6) TMI 626 - AT - Central Excise

Reversal of CENVAT credit - Rule 3(5A) of CENVAT Credit Rules, 2004 - The allegation is that the appellant removed the used inputs and capital goods and did not reverse the proportionate duty upon such items - Penalty - Held that - Though there is a vague allegation in the SCN that the appellant suppressed facts, nothing is brought out from the records to support this allegation - There being no suppression brought out from the facts with intent to evade payment of duty, the Commissioner (Appeals) has rightly set aside the penalty imposed under section 11AC of Central Excise Act. In view thereof, penalty imposed under Rule 15 of CENVAT Credit Rules, 2004 requires to be set aside - appeal allowed in part.

Summary

Issues:
- Demand of duty under Rule 3(5A) of CENVAT Credit Rules, 2004 for removal of waste and scrap of inputs and capital goods.
- Imposition of penalties under Section 11AC of the Act and Rule 15 of CENVAT Credit Rules, 2004.
- Challenge to penalties by the appellant before the Tribunal.

Analysis:

1. Demand of Duty under Rule 3(5A) of CENVAT Credit Rules, 2004:
The appellants, engaged in manufacturing chemicals and fertilizers, faced a demand of duty for not reversing credit upon removal of waste and scrap of inputs and capital goods during a specific period. The original authority confirmed a demand along with interest and penalties. The Commissioner (Appeals) set aside the demand for the period before 16.5.2005, citing the non-applicability of Rule 3(5A) before that date. The Tribunal reviewed the records and found no evidence of suppression or intent to evade duty, ultimately upholding the demand but setting aside the penalties.

2. Imposition of Penalties under Section 11AC of the Act and Rule 15 of CENVAT Credit Rules, 2004:
The appellant challenged the penalties imposed, arguing that since the penalty under Section 11AC was set aside by the Commissioner (Appeals), the penalty under Rule 15 could not be sustained. The Tribunal agreed, noting that without any evidence of fraud or suppression, the penalties were not justified. The penalty under Rule 15 was subsequently set aside, aligning with the decision on the penalty under Section 11AC.

3. Challenge to Penalties before the Tribunal:
The appellant, through their counsel, contended that there was no basis for the penalties as no fraud or suppression was established. The Tribunal, after hearing both sides, concurred with this argument, emphasizing the lack of evidence supporting the allegations of suppression. Consequently, the penalties under both Section 11AC and Rule 15 were deemed unwarranted and set aside, granting partial relief to the appellant without affecting the duty demand and interest.

In conclusion, the Tribunal modified the impugned order by setting aside the penalty imposed under Rule 15 of CENVAT Credit Rules, 2004, while upholding the duty demand and interest. The appeal was partly allowed, providing consequential relief to the appellant as per the decision rendered.