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TMI Blog2015 (2) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... ) read with the formula prescribed in Rule (3A) and in this regard, the Commissioner shall consider the Appellant's plea that they, during this period, have not taken the credit in proportion to the inputs/input services used in on in relation to manufacture of exempted final products and also the reports of Asstt. Commissioner of Central Excise, Agra to Asstt. Commissioner (Adjudication) on this issue. In view of the Tribunal s final order dated 27.12.2012, the Commissioner cannot once again go into the question of applicability of the provisions of Rule 6(3)(ii).Since the Tribunal had set aside the penalty, in de novo proceedings, the Commissioner cannot decide to impose the penalty again. - Decided in favour of assessee. Hon'ble Delhi High Court in case of Rahul Enterprises [1998 (12) TMI 577 - DELHI HIGH COURT] has held that Commissioner of Sales Tax, as quasi judicial authority, can impose adjournment cost, as while awarding costs acts as a deterrent to the frequent requests for adjournment, it also compensates the other party for inconvenience caused by adjournment. In our view this principle, though in the context of frequent requests for adjournment, will apply in a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest, also sought imposition of penalty on them under Rule 15 of the Cenvat Credit Rules, 2004. 1.2 W.e.f. 1.3.2008, Rule 6 (3) of the Cenvat Credit Rules, 2004 was amended so as to give an additional option to every manufacturer using common cenvat credit availed inputs/input services in manufacture of dutiable as well as exempted goods and not maintaining separate accounts and inventory, to reverse the cenvat credit attributable to the input and input services used in or in relation to the manufacture of exempted final products, subject to conditions and procedure specified in sub-rule (3A) of the Rule 6. By Finance Act, 2010, a retrospective amendment was made to Rule 6 of the Cenvat Credit Rules, 2004 w.e.f. 10.09.2004 and there was also a provision that in respect of pending disputes, the appellant instead of paying an amount equal to 5%/10% of the sale value exempted final products, could pay an amount equal to the cenvat credit attributable to the inputs and input services used in or in relation to the manufacture of exempted goods, subject to production of Chartered Accountant s certificate in this regard. 1.3 The above mentioned two show cause notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the matter to the Commissioner for re-quantification of the cenvat credit to be reversed for the period from April, 2008 to March, 2010. The Tribunal also set aside the penalty on the appellants on the ground that since the matter involved interpretation of law, the penalty on them is not called for. In this regard para-10 11 of the Final Order No.A-346/2012-EX(BR) dated 27.05.2012 and para 2 to 6 of the Misc. Order No719/2012-EX(BR) dated 11.06.2012 are reproduced below:- Paras-10 11 of the Final Order No.A-346/2012-EX(BR) dated 27.05.2012: 10. As per the provisions of Section 73(3) of Finance Act, 2010, if the Commissioner finds that the credit reversed by the assessee is not correctly reversed, the only option available to the Commissioner is to calculate it correctly and then ask them to reverse the correct amount. It goes without saying that before adopting the above manner of calculation, he has to give reasons as to why he considers that the calculation given by the assessee is not proper and he has to disclose the method he is going to adopt so that the assessee can make submissions as to why the calculation adopted by him may or may not be justified. After th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing passed by the Commissioner, the Commissioner in para 1 to 6 of her order, after taking note of the Tribunal s directions and also the orders regarding setting aside of penalty, as mentioned above, and also observing that the Tribunal s final order and miscellaneous order have been accepted by the Committee, as informed by Superintendent (Review ) vide letters dated 20.04.2012 24.12.2012, confirmed the demand of ₹ 95,51,744/- i.e. ₹ 79,59,504 for the period 1.4.2008 to August, 2009 andRs.15,92,240/- for the period September, 2009 to March, 2010 along with interest and besides this, also imposed penalty of the same amount on the appellant under Rule 15 of the Cenvat Credit Rules, 2004. Against this order of the Commissioner, this appeal has been filed along with stay application. The miscellaneous application has been filed for considering the additional evidences. The additional evidence sought to be introduced consist of some documents obtained by the appellant from the department under Right to Information Act and these documents are the letters of the concerned Range Superintendent to the jurisdictional Asstt. Commissioner as well as to the Superintendent (Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products in spite of the information in this regard having been furnished by the appellant, that the Commissioner has wrongly once again confirmed the demand of ₹ 95,51,744/- under Rule 6(3)(i) of the Cenvat Credit Rules, 2004 calculated on the basis of 5%/10% of the value of the exempted goods without computing the quantum of cenvat credit to be reversed in respect of input/input services used in the manufacture of exempted final products, that this order of the Commissioner is, therefore, contrary to the directions of the Tribunal, that not only this, while the Tribunal in the Final Order had set aside the penalty on the ground that the matter being of interpretation of rule, imposition of penalty is not called for, the Commissioner even after observing that this order of the Tribunal has been accepted by the Committee of Commissioners, has against decided to impose penalty of same amount on the appellant, that this order of the Commissioner is a perverse order against the basic cannons of adjudication and shows not only the disrespect to the higher judicial authorities but also amounts to contempt. He, therefore, pleaded that the impugned order is a perverse order and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, 2010. However, the Tribunal vide Final Order dated 27.02.2012 read with misc. order dated 11.06.2012 in respect of ROM application, has held that the appellant even for the period from April, 2008 to March, 2010, would be eligible for the benefit of Section 73 of Finance Act, 2010 and accordingly, would be liable to pay only an amount equal to the actual cenvat credit involved in respect of input or input service used in or in relation to the manufacture of exempted final products and the matter had been remanded to the Commissioner only for the quantification of the amount after hearing the appellant. Besides this, the Tribunal had specifically held that since the matter involves interpretation of law, imposition of penalty under Rule 15(2) of the Cenvat Credit Rules, 2004 is not called for and had set aside the penalty. We notice that in the de novo order, the directions of the Tribunal in the remand order mentioned above have been duly noted in para- 4,5 6 of the Commissioner s order, wherein it is also mentioned that the final order as well as misc. order have been accepted by the Committee of Commissioners. However, what we find is that the Commissioner disregarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the pleas of the Appellant, as recorded in para 8 of her order, that during the period of dispute, they had been maintaining separate account for receipt and consumption of the inputs input services meant for the manufacture of exempted final products and they had not taken cenvat credit in respect of inputs/input services used in the manufacture of exempted goods. This plea of the Appellant stands confirmed by the verification report dated 6.8.2013 of the Range Superintendent to Superintendent (Tech.), Central Excise Division, Agra and the report sent by AC, Agra to AC (Adjudication), Headquarters office, Kanpur, according to which during 2008-2009 and 2009-2010, the credit not taken in respect of inputs/input services used in or in relation to manufacture of exempted final products was more than the credit required to be reversed in terms of the formula of sub-rule (3A) of Rule 6. If this is correct, there was absolutely no need to initiate the proceedings under Rule 6(3). We also fail to understand as to why the Range Superintendent s report which had been forwarded to AC (Adjudication) by AC, Agra vide his letter dated 30.08.2013 has been totally ignored by the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal s Final Order dated 27.12.2012 read with Misc. Order dated 11.06.2012 and by which the demand under Rule 6(3) (i) of an amount of ₹ 95,51,744/- along with interest on it under Section 11 AB has been confirmed and penalty of equal amount has been imposed, is depreciable, as the Tribunal had given a clear finding that there is no scope to ask the assessee to pay 5%/10% of the value of exempted goods and had specifically set aside the penalty and the final order and the Misc. Order of the Tribunal, as noted by the Commissioner in para-6 of her order had been accepted by the Committee of Commissioners. The order is in contumacious disregard of the Tribunal s directions, besides having been passed by totalling disregarding the Appellant s plea that during the period of dispute, they had not taken the cenvat credit in proportion to the use of inputs/input services in or in relation to the manufacture of the exempted final products and the report of jurisdictional Superintendent supporting this contention of the Appellant. It is this type of irresponsible adjudication which is burdening this Tribunal with mounting pendency, besides increasing the cost of compliance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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