Custom, Excise & Service Tax Tribunal
M/S. Amit Metaliks Ltd vs Commissioner Of Central Excise, Bolpur on 28 July, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. E/76441/2014
(Arising out of Order-in-Appeal No.32/BOL/2014 dated 07.08.2014 passed by the Commissioner (Appeal-III), Central Excise, Kolkata)
FOR APPROVAL AND SIGNATURE
Honble Shri H.K.Thakur, Member (Technical)
1. Whether Press Reporters may be allowed to see
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. Amit Metaliks Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Bolpur
Respondent (s)
Appearance:
Sri Debasish Ghosh, Sr. Manager(taxation) for the Appellant (s) Sri S.Mukhopadhyay, Suptd.(AR) for the Respondent (s) CORAM:
Honble Shri H.K.Thakur, Member (Technical) Date of Hearing:- 28.07.2016 Date of Pronouncement :- 28.07.2016 ORDER NO.FO/A/75692/2016 Per Shri H.K.Thakur
1. This Appeal has been filed by the appellant against Order-in-Appeal No. 32/BOL/2014 dated 07.08.2014 passed by the Commissioner (Appeal-III), Central Excise, Kolkata as First Appellate Authority. Under this OIA dated 07.08.2014 First Appellate Authority has upheld OIO dated 09.04.2013 passed by the Adjudicating Authority. The issue involved is regarding taking of Cenvat credit of Rs.3,18,598/-by the appellant with respect to certain casting & cast articles, falling under chapter 73251000, as capital goods.
2. Sri Debasish Ghosh, Senior Manager (Taxation) appearing on behalf of the appellant argued that the entire amount of Cenvat credit along with interest has been paid by the appellant. That even if on merits appellant had a case for admissibility of Cenvat credit but to buy peace the issue is not being agitated on merits. Regarding imposition of penalty Sri Debasish Ghosh argued that appellant was under a bonafide belief that items on which Cenvat credit is taken was used in the conveyor belt of mother machinery which is integral part of the capital goods. That having a reasonable belief will not attract penal provisions under Cenvat Credit Rules, 2004.
3. Sri S.Mukhopadhyay, Suptd.(AR) appearing on behalf of the Revenue argued that appellant has paid entire period of demand along with interest when the show cause notice dated 15.10.2012 was issued for extended period. That when the demand of extended period is also paid by the appellant then equivalent penalty is correctly invoked against the appellant.
4. Heard both sides and perused the case records.
5. The issue involved in the present proceedings is whether equivalent penalty under Rule 15(2) of the Cenvat Credit Rules, 2004; read with Section 11 AC of the Central Excise Act, 1944; is imposable upon the appellant. A credit of Rs.3,18,598/- was taken by the appellant on certain casting and casting articles falling under chapter 73 of the Central Excise Tariff Act, 1985 as capital goods. The items, on which credit is taken, are used in the capital goods which are further used in the manufacturing activity. The case of the department on merits can be that this casting and casting articles are used in making of support structures for the machinery. This issue was disputable during the relevant period and confronting case laws on the subject were available. The matter was finally decided by the larger bench in the case of Vandana Global Ltd. vs.-Commissioner of Central Excise, Raipur [2010(253)E.L.T. 440(Tri.LB)]. Under the above factual matrix appellant cannot be visited with equivalent penalty when conflicting views were given on the admissibility of Cenvat credit of such items.
6. In view of the above observations appeal filed by the appellant is only allowed to the extent of equivalent penalty imposed upon the appellant by lower authorities.
(Operative Portion of the order was pronounced in the open court.) S/d.
(H.K.Thakur) MEMBER(TECHNICAL)
SS
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Appeal No.E/76441/2014