9911796707
TMI Blog2021 (2) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... toms, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Chennai ('the Tribunal' for brevity). 2.The revenue has filed the appeal by raising the following substantial questions of law: "(A) Whether the Tribunal is correct in allowing the appeal of the assessee/respondent by dropping the mandatory penalty imposed on them? (B) Whether the Tribunal committed an error of law in ignoring the explanation 1 appended to Sec.11AC for deleting mandatory penalty on respondent? (C) Whether the Tribunal was justified in assuming "bonafides"ignoring the categorical finding by the authorities below that the conduct of the respondent amounts to "suppression"? (D) Whether the Tribunal was correct in following the decisions reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three bills of entry should not be demanded under Rule 12 of the Erstwhile CENVAT Credit Rules, 2002 r/w. Section 11A(1) and Section 38A of the Act; why interest of Rs. 6,20,739/- involved on the credit wrongly taken should not be demanded; why the amount of Rs. 48,52,516/- paid by the respondent vide PLA Debit No.30 dated 31.01.2004 and the interest of Rs. 6,20,739/- paid by challan dated 20.02.2004 should not be appropriated against recovery of CENVAT credit and interest; why penalty should not be imposed on the respondent under Rule 13 of the Erstwhile CENVAT Credit Rules, 2002 and Rule 25 of Central Excise Rules, 2002 r/w. Section 11AC of the Act; why the capital goods should not be confiscated and why penalty should not be imposed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed penalty of Rs. 48 lakhs on the Managing Director and Rs. 48 lakhs on the Administrative Manager. The respondent as well as the Managing Director and the Administrative Manager filed an appeal before the Commissioner of Central Excise (Appeals), Salem and the grounds raised before the original authority was once again canvassed and certain decisions were relied on. The First Appellate Authority by order dated 24.12.2007 confirmed the order of the original authority in so far as the respondent is concerned, vacated the penalty imposed on the Managing Director and reduced the penalty imposed on the Administrative Manager to Rs. 1 lakh from Rs. 48 lakhs. The penalty imposed on the Administrative Manager was not challenged by him and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent's appeal. 6.Mr.Shankararaman, learned counsel for the respondent would submit that the appeal filed by the revenue cannot be pursued by them on account of the circular issued by Central Board of Excise and Customs [CBEC], wherein monetary limits have been fixed for the revenue to prosecute the appeals and in the instant case, the quantum involved is less than the threshold limit and the revenue cannot pursue the appeal. 7.In reply, the learned senior standing counsel would submit that he has got no instructions to withdraw the appeal but has been orally informed by the appellant Department that prosecution has been launched against the respondent and therefore, no instructions can be given to withdraw the EP. 8.Nevertheless, sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded for any reasons other than fraud or collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of section 11A, shall also be liable to pay penalty. 10.In the case on hand, there is no allegation of fraud or collusion or wilful misstatement or suppression of facts. The revenue seeks to bring the assessee's case under the caption contravention of the provisions of the Act or the rules made thereunder. The statute furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CG Scheme. The Tribunal took note of the overall facts and circumstances of the case and found that availment of CENVAT credit without payment of CVD was done by an employee of the Company and it was a bonafide mistake. Furthermore, the Department took more than 2-1/2 years to issue show cause notice when they were fully aware that the CENVAT credit was wrongly availed by the respondent. Therefore, the finding rendered by the Tribunal on the facts and circumstances cannot be termed to be perverse for us to interfere in an appeal filed under Section 35G of the Act. 11.The Tribunal has referred to the decision of the Karnataka High Court in the case of CCE Bangalore vs. Geneva Fine Punch Enclosures Limited [2011 (267) ELT 481 (Kar.)] and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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