Custom, Excise & Service Tax Tribunal
Raymond Apparel Ltd vs Commissioner Of Central Excise, ... on 26 April, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No.E/3207/03 (Arising out of Order-in-Appeal No.PD/50/TH-I/2003 dated 31/07/2003 passed by Commissioner of Central Excise (Appeals), Mumbai) For approval and signature: Honble Mr. B.S.V. Murthy, Member (Technical) Honble Mr. Ashok Jindal, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
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Raymond Apparel Ltd., Appellant
Vs.
Commissioner of Central Excise, Thane-I Respondent
Appearance:
Shri.Mihir Deshmukh, Advocate for appellant
Shri. H.B. Negi, SDR, for respondent
CORAM:
Honble Mr. B.S.V. Murthy, Member (Technical)
Honble Mr. Ashok Jindal, Member (Judicial)
Date of Hearing : 26/04/2011
Date of Decision : 26/04/2011
ORDER NO
Per: Ashok Jindal
1. The appellants are in appeal against the imposition of penalty under Rule 13 of the Cenvat Credit Rules, 2002.
2. The allegation against the appellants are that they have wrongly availed the Cenvat credit of Additional duty/wrongly utilized Cenvat credit twice/availed Cenvat credit of Basic Excise duty and also Additional Excise Duty under Additional duty of Excise on inputs. Therefore, on pointing out by the department, the appellant paid the duty demand along with interest. Thereafter, a show-cause notice was issued for proposing the penalty under Rule 13 of the Cenvat Credit Rules, 2002.
3. The adjudicating authority imposed a penalty of Rs.12,55,342/-. On appeal before the first appellate authority, it was observed that the appellants have availed irregular credit of Rs.84,167/- only, therefore, the penalty was reduced to Rs.80,000/-. Aggrieved by the said order, the appellants are before us.
4. The Ld. Advocate for the appellant submits that no specific provision of Rule 13 was proposed to penalize the appellants and strongly relied on the decision of Amrit Foods Vs. CCE, UP, reported in 2005 (190) ELT 433 (SC) and submitted that in the absence of specific clause of Rule alleging the contravention, penalty is not imposable under Rule 13 of the Cenvat Credit Rules, 2002, therefore the impugned order be set aside.
5. On the other hand, the Ld. DR submitted that the appellants are liable to be penalized for the contravention of the rules/provisions of the Act and further submitted that in the case of Punjab Tractors Ltd., Vs. CCE, Chandigarh, reported in 2005 (181) ELT 380 (SC), has held that for violation of Rules, the assessee is liable to penalty. Therefore, the impugned order is to be upheld.
6. Heard both sides.
7. On careful examination of the submissions made by both sides that in the case of Punjab Tractors Ltd., (supra), the Honble apex Court has held that for violation of Rules, whether there is a situation, the revenue neutrality, the assessee is liable to penalty, which was passed on 10/02/2005, but in the case of Amrit Foods (supra), which was passed on 26/10/2005 by the Honble apex Court has clearly held that when there is no particular clause of the Rule is mentioned in show-cause notice nor in the adjudication order, the assessee to be put on notice as to exact nature of contravention for which the penalty is leviable. Therefore, in the absence of that, the penalty is not leviable.
8. We have gone through the show-cause notice as well as the adjudication order. There is no specific clause of Rule 13 of Cenvat Credit Rules, 2002 has been proposed or put on notice to the appellants to exact nature of contravention. Therefore, in the absence of specific clause, following the decision of Amrit Foods (supra), we hold that no penalty is leviable in this case, the impugned order is set aside. Appeal is allowed with consequential relief, if any.
(Pronounced in Court) (B.S.V. Murthy) Member (Technical) (Ashok Jindal) Member (Judicial) pj 1 2