2018 (8) TMI 1449 - AT - Central Excise

Penalty u/s 11A(1)(c) of Central Excise Act, 1944 - reversal of wrongly availed CENVAT Credit - Held that - The appellants has reversed the amount before the issuance of SCN and therefore, the Department should not have issued the SCN itself - reliance placed in the case of RADIALL INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS, BANGALORE 2017 (6) TMI 201 - CESTAT BANGALORE , where it was held that the appellant reversed the CENVAT credit on being pointed out by the audit party along with interest and also informed the department about the same before the issue of SCN. In such a situation, as per Sub-section (2B) of Section 11A, the adjudicating authority should not have issued the SCN - appeal allowed - decided in favor of appellant.

Summary

Issues involved: Appeal against the Commissioner's order partially allowing and modifying penalty under Section 11A(1)(c) of Central Excise Act, 1944 for non-moving goods provision.

Analysis:
1. Facts and Background: The appellant showed provision for slow/non-moving goods/obsolete inputs and Cenvatable inputs from October 2010 to March 2015 amounting to ?398095. The assessee was required to pay ?46158 as per Rule 3(5B) of CENVAT Credit Rules, which was later reversed in the credit register after a notice was issued demanding the reversal and imposing penalty under Rule 15(2) of CCR.

2. Appellant's Arguments: The appellant contended that there was no need for reversal as the items were still available in stock. They argued that making provision for writing off amounts to the value and does not amount to evading duty. They also highlighted that the reduction in the value of stock for income tax purposes does not equate to writing off the stock. Additionally, they reversed the amount before the issuance of the show-cause notice (SCN) as per Section 11A(1)(b) and 11A(2) provisions.

3. Department's Defense: The AR defended the impugned order, supporting the penalty imposed by the Commissioner.

4. Tribunal's Decision: After hearing both sides and examining the records, the Tribunal found that the appellants had reversed the amount before the SCN was issued, which should have precluded the issuance of the SCN. Citing precedents, the Tribunal concluded that the penalty imposed was not sustainable in law. The Tribunal set aside the penalty of ?23,079, allowing the appeal of the appellants.

5. Precedents: The Tribunal relied on the decisions of GKN Drive Line India Ltd. Vs. CCE, Delhi-IV and Radiall India Pvt. Ltd. Vs. Commissioner of Central Excise, Service Tax and Customs, Bangalore to support its decision.

6. Conclusion: The Tribunal, following the principles established in the cited cases, held that the penalty imposed was unjustified as the appellants had reversed the amount before the SCN was issued. The impugned order was deemed unsustainable in law, leading to the penalty being set aside in favor of the appellants.