Custom, Excise & Service Tax Tribunal
India Yamaha Motors Pvt. Ltd vs Cce, Noida on 11 July, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/Decision:11.07.2013
Excise Appeal No.E/2301 of 2009-EX (DB)
[Arising out of Order-in-Original No.18/Commr/Noida/2009 dated 29.4.2009 passed by the Commissioner of Central Excise, Noida (U.P.)].
India Yamaha Motors Pvt. Ltd. Appellant
Vs.
CCE, Noida Respondent
For approval and signature:
Honble Smt. Archana Wadhwa, Member (Judicial)
Honble Shri Rakesh Kumar, Member (Technical)
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1. Whether Press Reporters may be allowed to see CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
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Appearance: Rep. by Shri B.L. Narsimahan, Advocate for the appellant.
Rep. by Shri V.P. Batra, DR for the respondent.
CORAM: Honble Smt. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No.57084/2013 Dated:11.07.2013 Per Archana Wadhwa:
After hearing both the sides, we find that the appellant is engaged in the manufacture of Motor Cycles. During the period, May, 2007 to July, 2008, they exported motorcycles manufactured by them under the claim of rebate. The said items were cleared on payment of basic excise duty as also education cess and secondary higher education cess. Subsequently, they claimed refund of duties so paid by them, which was granted to them.
2. However, it turned out that the said motorcycles were liable to discharge NCCD. On being pointed out by Revenue, they accepted the above mistake and paid the same in cash on 5.9.2008 along with interest. Subsequently, a show cause notice was issued to them on 6.1.2009 proposing confirmation of the said demand along with interest and for imposition of penalty. The Commissioner vide impugned order confirmed the proposals made in the show cause notice. Hence the present appeal.
3. The appellants contention through his Advocate, Shri B.L. Narsimhan is that they were exporting their final products under the claim of rebate and all the duties paid by them were being refunded to them in cash. Had they paid the NCCD along with other duties at the time of clearance of the goods, they would have been entitled to the refund of the same. He further submits that in fact, by not paying NCCD, at the time of clearances of the goods, it is the appellant, who is suffering financial loss inasmuch they could have paid the said duty from their accumulated cenvat credit of around Rs.36 Crores and would have got the refund of the same in cash. As such, he submits that by not paying NCCD, the appellant has been unable to convert the credit amount into cash amount. As such, his contention that such non-payment is neither deliberate nor intentional with any ulterior motive, in which case the penalty should not have been imposed upon him. He makes it clear that inasmuch as he has already filed rebate claims of the NCCD paid by them, which are pending adjudication, he is not contesting the confirmation of NCCD. He is only challenging to the imposition of penalty upon the appellant.
4. Ld. DR, Shri V.P. Batra appearing for the Revenue draws our attention to the reasonings adopted by the Commissioner for imposition of penalty. He submits that once there is a liability on the assessee to pay the duty, non-payment by itself reflects upon his malafide in which case penal provisions would get attracted. As such, by relying upon the Honble Supreme Courts decision in the case of Dharmendra Textile Processors (2008) 306 ITR 277 (SC, he submits that imposition of penalty to the extent of 100% is justified.
5. The dispute in the present appeal is as to whether in the facts and circumstances of the case, imposition of penalty of Rs.2.02 crores approximately is required to be upheld or not. As putforth before us by the ld. Advocate, the NCCD paid by the assessee is to be refunded to them in cash as their final product was cleared for export and the other duties paid by them already stand refunded to them. We also note that there was sufficient credit almost to the extent around Rs.36 crores accumulated with the appellant and same could have been utilized for payment of NCCD and such payment out of cenvat credit account could have been converted into refund in cash. As such, we find that by not paying NCCD, the appellant cannot be held to have been benefited in any manner. On the contrary, the same has resulted in financial loss to the appellant. If that be so, we do not find it justifiable to invoke the penal provisions against the appellant.
6. We also find support for our above views from the Tribunals decision in the case of Larsen & Toubro Ltd. Vs. CCE, Pondicherry reported in 2008 (227) ELT 65 (Tribunal-Chennai), wherein in identical facts and circumstances of the case, Tribunal has held that non-payment of differential duty, which would have been refunded to the assessee on account of export of the goods under rebate, results in revenue neutrality and thus, penalty cannot be imposed. In fact, in the said decision, Tribunal set aside the demand of differential duty itself.
7. In view of our foregoing discussion, we set aside the impugned order insofar as it relates to the penalty as duty is not being contested by the ld. Advocate. The appeal is disposed of in the above terms.
( Archana Wadhwa ) Member (Judicial) ( Rakesh Kumar ) Member (Technical) Ckp.
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