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TMI Blog2023 (9) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... o be levied. Inspite of these notices were issued after nearly 2 years after the audit observations and reversal of credit. The Hon ble Karnataka High Court in the case of COMMR. OF C. EX., BANGALORE-I VERSUS GENEVA FINE PUNCH ENCLOSURES LTD. [ 2011 (1) TMI 746 - KARNATAKA HIGH COURT] where the order of the Tribunal held not to impose penalty, was upheld by the Hon ble High Court of Karnataka. There are no merit either in the show-cause notices or in the impugned order - appeal allowed. - HON BLE MRS R. BHAGYA DEVI , MEMBER ( TECHNICAL ) For the Appellant : Mr. Vinayaka Hegde, CA For the Respondent : Mr. K. Vishwanath, Superintendent (AR) ORDER Per R. BHAGYA DEVI : M/s. Nexteer Automotive India Pvt. Ltd, the appellants are manufacturers of excisable goods viz., Halt Shaft Assembly, Column Assembly, Steering Assembly, etc. Audit officers visited the premises of the appellant and audited their records for the period from January 2013 to December 2013. During the course of audit, the audit officers found that the appellant had availed irregular credit and the entire credit was reversed by the appellant on 30.01.2014. The audit report dated 9.4.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.8.2022, upheld the order of the Original Authority by imposing penalty. 2. When the appeal came up for hearing today, the learned Chartered Accountant Mr. Vinayaka Hegde, on behalf of the appellant submitted that the audit parties in their audit report had categorically mentioned that the assessee was not charged with interest and penalty since they had immediately reversed the credit and sufficient balance of credit was available in their records. Therefore, the show-cause notice was irregular and the adjudicating authorities should not have imposed penalty on them as is observed by the audit parties. They also submitted that the Commissioner (A) had also in his Order-in-Appeal No.161- 164/2018 dated 16.2.2018 had clearly observed that since credit was reversed in 2014 much before the issuance of show-cause notices and there was sufficient credit available in their CENVAT account, therefore, imposition of penalty was not necessary but however, he remanded the case to the original authority to decide afresh. 2.1 The learned Chartered Accountant also relied on the decision in the case of Landis + Gyr Ltd. vs. Commissioner of Central Excise, Kolkata-V: 2017 (49) S.T.R. 637 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the transactions are available in the specified record, then in such cases, the Central Excise Officer shall within a period of five years from the relevant date, serve a notice on the person chargeable with the duty requiring him to show cause why he should not pay the amount specified in the notice along with interest under Section 11AA and penalty equivalent to fifty percent of such duty. He submits that appellant was liable to pay 50% of penalty which has been rightly imposed by the adjudicating authority. He also relied on the judgment rendered in the case of Alstom Projects India Ltd. vs. Commissioner of Customs, C. Ex. And Service Tax, Coimbatore: 2018 (3) TMI 604 CESTAT CHENNAI and in the case of Commissioner of Central Excise, Allahabad vs. NIBI Steel Ltd.: 2008 (11) TMI 474 CESTAT, New Delhi wherein it was discussed that the appellants are rightly to be penalised for having availed irregular credit. 4. Heard both sides. The audit officers visited the appellant s unit in the month of January and February 2014 and during the course of audit, they noted that some irregular credit was being availed on certain input services. Irregular credit taken on input ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to the transaction are available in the specified record, then in such cases, the central excise officer shall, within five year period from the relevant date serve a notice on the person chargeable with the duty requiring him to show cause why he should not pay the amount specified in the notice along with interest under section 11AA with penalty equivalent to 50% of such duty demanded . In order to invoke these provisions, it is necessary to prove either fraud or collusion or wilful misstatement or suppression of facts or contravention of any of the provisions with intention to evade payment of duty. Unfortunately, none of these ingredients have been invoked in the notices and the impugned order also does not provide any evidences except to state that that the irregular availment of cenvat credit came to light only at the time of audit. In this regard the observations made by the tribunal in the case of Landis+GYR Ltd. Vs. Commissioner of Central Excise Kolkatta-V: 2017 (49) STR 637 becomes relevant, the Tribunal observed that the adjudicating authority as well as the appellate authority did not discuss the facts which were suppressed or mis- declared or have been r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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