Custom, Excise & Service Tax Tribunal
B.R. Agrotech Ltd vs Cce, Jammu & Kashmir on 8 July, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160017 COURT NO.1 Appeal No.E/178/2016- (SM) (Arising out of the Order-in-Appeal No.JNK-EXCUS-000-APP-514-15-16 dated 28.01.2016 passed by the CCE (Appeals), Chandigarh-II) Date of Hearing/Decision: 08.07.16 For Approval & signature: Honble Mr.Ashok Jindal, Member (Judicial) 1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes B.R. Agrotech Ltd. Appellant Vs. CCE, Jammu & Kashmir Respondent
Appearance Sh. Vikrant Kackaria, Advocate - for the appellant Sh. Atul Honda, AR - for the respondent CORAM: Honble Mr.Ashok Jindal, Member (Judicial) FINAL ORDER NO: 60879/2016 Per Ashok Jindal:
The appellant is in appeal against the impugned order demanding interest and imposing penalty under Rule 25 of the Central Excise Rules, 2002.
2. The facts of the case are that the appellant is located in the state of Jammu & Kashmir and availing benefit of Notification No. 56/2002-CE dated 14.11.2002. The said notification was amended in the year 2008 wherein the cash refund was restricted for 34% of the value addition. The said notification was challenged before the Honble High Court of Jammu & Kashmir wherein the said notification was set aside. Against the said order of Single Bench of Honble High court of Jammu & Kashmir, the Revenue has filed LPA before the Division Bench and the Division Bench of the Honble High court vide order dated 13.12.2012 directed that the assesses are entitled to avail the refund of duty paid to the extended of 50% till the disposal of LPA before the Honble High Court. During the period of December 2012, the appellant availed 100% refund of the duty paid and filed their regular ER-1 with the department. Later on, a show cause notice was issued to the appellant on 26.02.2014 to demand interest for the intervening period and to impose penalty under Rule 25 of the Central Excise rules, 2002. The matter was adjudicated. The demand of interest was confirmed and penalty Rs. 10,000/- was imposed under Rule 25 of the Central Excise Rules, 2002. Aggrieved from the said order, the appellant is before me.
3. The Ld. Counsel for the appellant submits that the fact of availment of 100% refund was the knowledge of the department in the month of March 2013 itself when they have regular ER-1 return with department which clearly shows the availment of 100% refund of duty paid during the period of December2012, therefore, a show cause notice is barred by limitation as no mala-fide has been alleged against the appellant in the show cause notice. He further submits that during the intervening period, the appellant was having sufficient balance in their cenvat credit account, therefore, they are not liable to pay interest in the light of the decision of the Honble High Court of Karnataka in the case of Bill Forge Pvt. Ltd. reported in 2012 (279) ELT 209 (Kar.).
4. On the other hand, the Ld. AR supported the impugned order and submits that the reversal of amount was done in March, 2013 itself, therefore, a show cause notice was issued within time.
5. Heard the parties and considered the submissions.
6. I have gone through the show cause notice and the impugned order. In the show cause notice no mala-fide has been alleged against the appellant, therefore, no penalty can be imposed under Rule 25 of the Central Excise Rules, 2002. Admittedly, the provisions of section 11AC of the Act are missing, therefore, no penalty is imposable on them.
7. I find that during the intervening period, the appellant was having sufficient balance in their cenvat credit account/PLA, therefore, they are not liable to pay interest during the intervening period in the light of the decision of Honble High Court of Karnataka in the case of Bill Forge Pvt. Ltd. (Supra). Further, I find that the appellants have filed their regular ER-1 returns on 08.02.2013 showing details of availment refund of duty paid through PLA in the intervening period. In that circumstance, a show cause notice was issued to the appellant on 26.02.2014 is time bared in the light of the above discussion. Therefore, I do not find any merit in the impugned order, the same is set aside.
Consequently, the appeal is allowed with consequential relief.
(Dictated and Pronounced in the open court) Ashok Jindal Member (Judicial) rt 1