Custom, Excise & Service Tax Tribunal
M/S Gujarat Boron Derivatives Pvt Ltd vs Commissioner (Appeals), Central ... on 30 September, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/10734/2013 Arising out of OIA-PJ-406-VDR-II-2012-13 dt 23.1.2013 passed by the Commissioner (Appeals), Central Excise, Customs and Service Tax-VADODARA-II M/s Gujarat Boron Derivatives Pvt Ltd - Appellant(s) Vs Commissioner (Appeals), Central Excise, Customs and Service Tax-VADODARA-II - Respondent(s)
Represented by For Assessee : Shri Willingdon Christian, Advocate For Revenue : Shri L Patra, Authorised Representative For approval and signature :
Dr. D.M. Misra, Hon'ble 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 should be released under Rule 27 of 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? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Dr. D.M. Misra, Hon'ble Member (Judicial) Date of Hearing / Decision : 30/09/2016 ORDER No. A/11166 / 2016 dt 30/9/2016 Per : Dr D.M. Misra, Heard both sides.
2. This appeal is filed against OIA-PJ-406-VDR-II-2012-13 dt 23.1.2013 passed by the Commissioner (Appeals), Central Excise, Customs and Service Tax-VADODARA-II
3. The facts of the case, in brief, are that during the relevant period from April 2008 to June 2009 the appellant had availed Cenvat Credit of Rs 3,31,773/- on various Input Service used in or in relation to the trading activities. On being pointed out by the Dept., the said amount was reversed on 30.9.2009 and interest thereof paid on 13.6.2011. A show cause notice was issued to them for recovery/appropriation of the said credit alongwith proposal for imposition of penalty. On adjudication, the demand was confirmed and equal penalty imposed under Rule 15(4) of CCR, 2004 read with Section 11AC of the CEA, 1944. The appellant unsuccessfully challenged the order before the Ld Commissioner (Appeals). Hence, the present appeal.
4. The Ld Advocate, Shri Wiiingdon Christian, for the appellants submits that there was confusion about the eligibility of Cenvat Credit on Input Services used in or in relation to trading activity prior to April 2011. It is his contention that the position has become clear only after amendment to relevant provisions of Cenvat Credit Rules with effect from April 2011. Contesting the penalty, the Ld Advocate submitted that under the bonafide beliefthat they are eligible to the Cenvat Credit, they had availed it, but, as soon as pointed out by the department, it was reversed. Therefore, they had no intention to avail the said credit resorting to suppression or mis-declaration of facts. Therefore, penalty under Section 15(4) of CCR,2004 read with Sec. 11AC of CEA, 1944 is not applicable to the present the case. It is his further contention that Rule 15(4) of CCR, 2004, attracts only in cases where Input Service credit is availed by a service provider, whereas in the present case the Appellant is a manufacturers, hence, imposition of penalty on them under the said provision is untenable in law.
5. The Ld AR for the Revenue reiterated the findings of the Ld Commissioners (Appeals).
6. I find that the authorities below has not recorded any reasoning on the facts and evidences by which it could be concluded that the appellant had availed Cenvat Credit on Input Services used by them for trading activities during the relevant period by resorting into suppression or mis-declaration of the facts. No doubt the inadmissibility of credit taken by the appellant came to the notice of the Dept during the course of audit, but, that itself, in my opinion, cannot be the circumstance and be construed as availment of credit by way of suppression or mis-declaration of facts. In the result, the impugned order modified and the appeal is partly allowed to the extent of imposition of penalty. Appeal partly allowed.
(Dictated and pronounced in the Court) (D.M. Misra) Member (Judicial) swami ??
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