Custom, Excise & Service Tax Tribunal
Nagel Special Machines Pvt. Ltd vs Commissioner Of Central Excise, ... on 14 November, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 22027 / 2014 Application(s) Involved: E/Stay/23304/2014 in E/22844/2014-SM Appeal(s) Involved: E/22844/2014-SM [Arising out of Order-in-Appeal No. 318/2014 dated 30/05/2014 passed by the Commissioner of Central Excise, Bangalore] Nagel Special Machines Pvt. Ltd. No. 26C/27A, 2nd Phase, Peenya Industrial Area Bangalore 560 058 Karnataka Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Bangalore-I Post Box No. 5400, CR Buildings, Bangalore 560 001 Karnataka Respondent(s)
Appearance:
Ms Rukmani Menon, Advocate No.128, 'A' Wing Raheja Arcade, Koramangala, Bangalore - 560 095 For the Appellant Mr. R. Gurunathan, AR For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER Date of Hearing: 14/11/2014 Date of Decision: 14/11/2014 Order Per: B.S.V. MURTHY The appellant is engaged in the manufacture of Honing Machine, Deep Hole Drilling Machine etc. During the course of audit of the records for the period from 11/2010 to 9/2011 it was pointed out that the appellant had sent goods for job work which had not been received back from the job-worker within 180 days in terms of Rule 4(5) (a) of the CENVAT Credit Rules and the credit attributable was pointed out as Rs. 20,703/- which was promptly debited on 15.12.2011 by the appellants. Thereafter the appellants have furnished further details of non-receipt of inputs for the period from December 2009 to September 2011 and the amount of Rs. 91,916/- for this period was also debited by the appellant on 01.04.2012. Thereafter the appellants also paid interest. However proceedings were initiated against the appellant which culminated in confirmation of the demand and appropriation of the amounts already paid and imposition of penalty of Rs. 77,161/-.
2. Learned counsel submitted that appellant had paid the amount voluntarily and it was a bona fide mistake committed by the clerical staff engaged in doing this work and there was absolutely no intention to evade the tax or commit miss-declaration or suppress the facts. Therefore she submits that imposition of mandatory penalty is not warranted especially in view of the fact that appellant had paid the entire amount liable to be paid with interest and is not contesting the same also.
3. The appellant in this case need not have to furnish job-worker a return thereof and therefore it cannot be said they have suppressed any facts since according to the decision of Honble Supreme Court, the suppression of fact arises when what is required to be intimated/disclosed is not intimated/disclosed. Therefore what has happened in this case is nothing but miss-declaration in the sense when accounts are maintained, the appellant was required to ensure that wherever the inputs are not received back within 180 days, in such cases a proper declaration is made in the return and reversal of credit is carried out. To this extent it can be said there is miss-declaration but the intention to evade duty cannot be said to be in existence since even if the credit is reversed after 180 days when the inputs are received, credit can be taken back as per the statute. That being the position, it cannot be said that there is an intention to evade duty. Moreover the learned counsel also submitted that after the incident they have rectified the system and no such incident have occurred. Nevertheless while mandatory penalty may not be imposable under these circumstances especially in view of the fact that appellant has not contested the liability, penalty is definitely imposable. Even though stay application has been listed, since the issue has been considered in detail and all aspects have been covered, I consider that it would be appropriate to dispose of the appeal itself and accordingly the appeal is disposed of by upholding the demand for reversal of credit, interest thereon and reducing the penalty to Rs. 7500/-.
(Operative portion of the order has been pronounced in open court on 14.11.2014) (B.S.V. MURTHY) TECHNICAL MEMBER iss