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TMI Blog2010 (4) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... ation given, order have been passed. If the petitioner has any such grievance, it is open for them to approach the Central Excise Board for necessary redressal including the review on the matter. If and when any such petition is filed, it is open to the Board to pass orders, as they deem fit. - 4764 of 2010 - - - Dated:- 16-4-2010 - Chitra Venkataraman, J. Shri S. Murugappan, for the Petitioner. Shri K. Ravi Anantha Padmanabhan, Standing Counsel, for the Respondent. [Order]. - The petitioner herein is the manufacturer of automative electrical items having its manufacturing unit in Puducherry. By proceedings dated 10-11-2008,- the Superintendent of Central Excise informed the petitioner that, the electronic returns filed by the petitioner showed that the CENVAT credit availed appeared high when compared to the utilisation, hence, the petitioner was directed to produce documents relating to the CENVAT credit availed from the months January, 2008 to October, 2009 along with the statement for further verification. The petitioner filed a reply on 4-2-2009 wherein it admitted that on review of records and registers, it was found that the petitioner had availed CENVAT cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit availed, the said witness stated that the excess credit amount taken in CENVAT credit account was knowingly taken to avoid payment of duty at the time of clearance and the Same was: done with the knowledge of the company management. He reiterated that the excess amount was taken deliberately as instructed by the management and this was known to Chief Executive Officer too. He further answered that it was done with an intention to pay the amount along with interest at a later date, before the close of the accounting year. 2. Subsequent to the examination of the said person, the statement of Chief Executive Officer was recorded on 6-3-2009, wherein he pointed out as follows :- "................. I am in-charge of the Factory and also an authorised person to sign the documents to be submitted to Central Excise Department. On showing the ER-1 Returns, for the months of July 2008 to December 2008, I admit that it was signed by Shri. B. Gnasnasekaran who was working in M/s. Remy Electricals Limited as Finance Manager and he was authorised person to sign the ER-1 returns submitted to the Central Excise Department and for having seen the ER-1 returns signed by B. Gnanasekarn, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for payment for duty, where a portion of sale price, in excess of invoice price, is received by him or on his behalf but not accounted for in the books of account; (c) taking of CENVAT credit without the receipt of goods specified in the document based on which the said credit has been taken; (d) taking of CENVAT Credit on invoices or other documents which a person has reasons to believe as not genuine; (e) issue of excise duty invoice without delivery of goods specified in the said invoice; (f) claiming of refund or rebate based on the excise duty paid invoice or other documents which a person has reason to believe as not genuine, an officer authorized by the Board may order for withdrawal of facilities or impose certain restrictions as specified in para 2 of this Notification, the respondents are at liberty to impose restrictions wherein the facility of monthly payment of duties may be withdrawn and the assessee shall be required to pay excise duty for each consignment at the time of removal of goods; further, where a person is found to be knowingly involved in committing any one or more type of offences as specified in para 1 for the secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner was directed to intimate the receipt of principal inputs in the factory on which CENVAT credit has or has not been taken and that the same should be available for verification and the said restriction was applicable from 11-1-2010 to 31-3-2010. The order was passed without prejudice, to any action which could be taken against the assessee under this law or any other law for the time being in force. 5. Learned counsel for the petitioner pointed out that immediately after payment of the duty, the petitioner moved the Settlement Commission by way of petition on 12-1-2009. In the light of the petition thus filed before the Settlement Commission, the petitioner contends that the question of imposition of any restrictions as regards the availing of the CENVAT credit or payment of duty does not arise. In any event, there was no violation committed by the petitioner to bring the payment of duty under the restrictions laid down in Notification No. 32 of 2006. Learned counsel for the petitioner pointed out that the case, of the petitioner does not fall under any of the clauses enumerated in the Notification No. 32 of 2006 and there are no grounds to bring the case of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to have a check an the breach of law consciously committed by an assessee, leading to evasion of duty; that restrictions imposed as to the payment of duty and availing of CENVAT credit would bring an erring assessee to comply with the provisions in accordance with law. The restrictions imposed are only for a restricted period of time. Given the nature of restrictions thus imposed, that too on a satisfaction of the conduct of the assessee, knowingly committed the violation, rightly, in the case on hand, the respondents had passed the impugned order. It must be noted that such restrictions are necessary to bring the erring assessee on the correct rails, so that there is a compulsion on statutory compliance atleast in the future. It is further seen that to avoid any arbitrary exercise of authority in imposing restrictions, the Board had laid down, broad outline end the circumstances which warrant imposition of restriction. A reading of various circumstances narrated warranting imposition of restrictions clearly shows that these measures are aimed at preventing duty evasion arising on account of removal of goods without payment of duty and availing of CENVAT credit which otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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