9911796707
TMI Blog2023 (9) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... ber Industries (P) Ltd. Srinagar is engaged in the manufacture of Cement and Clinker and was availing benefit of exemption Notification No. 56/2002- CE dated 14/11/2002 and was availing self-credit facility under the provisions of the said Notification. The provisions of the said Notification were amended vide Notification No. 34/2008-CE dated 10/06/2008 whereunder extent of exemption on value addition was increased from 36% to 75% on Cement made from limestone and Gypsum. The respondent claimed refund as self-credit for the months of April and May, 2008 @36%, but after amendment to the Notification on 10/06/2008 as stated above they claimed refund as self credit of differential amounts of Rs. 30,06,458/- and Rs. 43,06,368/- (difference of 75% and 36% of value addition) for the months of April and May, 2008. * Since value addition @ 75% was applicable from the date of amendment to the parent Notification No. 56/2002-CE vide Notification No. 34/2008-CE dated 10/06/2008, the refund @ 75% of value addition was effective from 10/06/2008 only. The Notification No. 56/2002-CE was again amended vide Notification No. 52/2008- CE dated 03/10/2008 whereunder rate of value addition was incr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same. He further submitted that the value addition of 75% under Notification No. 34/2008-CE dated 10.6.2008 was available only in respect of Cement and Clinkers if manufactured out of inputs namely lime stone and gypsum both and the Respondent was manufacturing Cement by using both these inputs but were manufacturing Clinkers from limestone only and were eligible for the value addition of 75% in respect of Cement only and not in respect of Clinker. He further submitted that the law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. He also submitted that the exemption Notification has to be construed strictly. In support of his submission, he relied upon the following decisions:- COMMISSIONER OF C. EX., NEW DELHI V/S HARI CHAND SHRI GOPAL reported as 2010 (260) E.L.T. 3 (S.C.) Commissioner of Customs (Import), Mumbai vs Dilip Kumar & Company reported as 2018(361) ELT577 (SC) in para 52 Hon'ble CESTAT, WZ Bench, Mumbai in the case of M/S BPCL Vs CCE, Mumbai-II [reported as 2002(139) E.L.T.382 (Tri- Mumbai)] 2013 (296) E.L.T. 229 (Tri. Chennai) and reported as AMEX ALLOYS PVT. LTD. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 cannot be imposed. 7. Further, in order to impose penalty mens rea is a necessary ingredient for imposition of penalty as held in the following cases:- CCE Chandigarh Vs Valley Iron & Steel Co. Ltd. 2016(337) ELT 167(HP) CCE Delhi -II Vs Ganpati Rollings Pvt. Ltd . 2016(338) ELT587 (Delhi) CCE Delhi Vs Vee Gee Faucets Pvt. Ltd. 2015(329) ELT 76 (P&H) CCE VS. Steel Engineering Co. 2014(305) ELT 25 (ALL) CCE Hyderabad Vs Mahalakshmi Profiles Ltd. 2012(279) ELT 355 (AP) CCE VS Saurashtra Cement Ltd. 2010(260) ELT 71 (Guj) 8. He further submitted that the respondent has paid the duty alongwith interest and is not liable to pay the penalty because there was inordinate delay of one and a half year in fixing the special rate of value addition which was prejudicial to the interest of respondent and caused financial losses in as much as refund was reversed with interest to the revenue. 9. After considering the submissions of both the parties and perusal of material on record, it is relevant to reproduce the provisions of Rule 25 and 27 of the Central Excise Rules, 2002 which are reproduced herein below:- "Rule 25. Confiscation and penalty. - (1) subject to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this 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 11AC, shall also be liable to pay a penalty equal to the duty so determined. For the purpose of invoking Section 11AC of the Act, the condition precedent is that the duty has not been levied, or paid or short-levied or short- paid or the refund is erroneously granted by reasons of fraud, collusion or any wilful misstatement or suppression of facts. If these ingredients are not present, penalty under Section 11AC cannot be levied. Since Rule 25 can be invoked subject to the provisions of Section 11AC of the Act, as a natural corollary, the ingredients mentioned in Section 11AC are also required to be considered while determining the question of levying of penalty under Rule 25 of the Central Excise Rules." 12. Further, we find that the Ld. Commissioner in Para 19 of the impugned order has given the reasons for non-imposing the penalty. The Para 19 of the impugned order are reproduced here below:- 19. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
