Custom, Excise & Service Tax Tribunal
M/S. Wipro Ltd vs Commissioner Of Central Excise, Nasik on 12 August, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. E/79/09 - Mum
(Arising out of Order-in-Appeal No. IPL/196/NSK/2008 dated 14.10.08 passed by the Commissioner of Central Excise & Customs (Appeals), Nasik).
For approval and signature:
Honble Shri 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?
M/s. Wipro Ltd.
:
Appellants
Versus
Commissioner of Central Excise, Nasik
Respondents
Appearance Written submission for Appellants Shri S.M. Vaidya, JDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 03.08.10 Date of Decision : ORDER NO.
Per : Ashok Jindal M/s. Wipro Ltd. the appellants has filed this appeal against the impugned order wherein the prayer for waiver of penalty was denied. The facts of the case are that the appellants had availed CENVAT credit in respect of GTA and legal and professional charges (paid to Chartered Engineer). These services related to the whole of the factory.
2. Brief facts of the case are that the appellants engaged in the manufacture of soap, soap noodles and vanaspati and cleared soap and soap noodles against the payment of duty whereas vanaspati are exempted from the payment of duty. It was observed that the appellants had availed CENVAT credit on total amount of service tax paid by them on freight charges for inward transportation of raw material and outward transportation of all finished products cleared by them and on amount of legal and professional charges paid by them. As per Rule 6(2) of CENVAT credit Rules, 2004, Where a manufacturer or provider of output service avails of CENVAT credit in respect of any inputs or inputs services and manufacture such final products or provides such output service which are chargeable to duty or tax as well as exempted goods or services, then the manufacturer or provider of output services shall maintain separate accounts for receipt, consumption and inventory of input and input services meant for use in the manufacture of dutiable final products or in providing output service and the quantity of input meant for use in the manufacture of exempted goods or services and take CENVAT credit only on that quantity of input or input service which is intended for use in the manufacture of dutiable goods or in providing output service on which service tax is payable.
3. In this case the appellant did not maintain separate inventory in respect of inward transport of raw material used in the manufacture of vanaspati nor for outward transportation of vanaspati and availed service tax credit of the whole amount for the manufacture of vanaspati also. Show-cause notice was issued under the provisions of Central Excise Act, 1944 for reversal of CENVAT credit availed on input services as mentioned herein above used in vanaspati along with interest and proposal of penalty under Section 11AC of the Central Excise Act, 1944. The appellant paid the duty along with interest on pointing out by the department during the course of investigation but the adjudicating authority also imposed penalty on the appellants. Against the order-in-original the appellants filed an appeal before the Commissioner (Appeals) for waiver of penalty but the Commissioner (Appeals) confirmed the same. Aggrieved from the same the appellants are before me.
4. Today the matter was listed for final hearing. Instead of appearance the appellants choose to file a written submission, which has been taken on record and considered.
5. The learned DR submitted that the appellant has paid duty and interest without any protest on pointing out by the department during the course of investigation and they have not contested against the duty before the Commissioner (Appeals). Hence, the appellants cannot challenge the duty demand at this stage. He further submitted that by quoting wrong provision does not nullify the demand. In support of this he relied on the decision in the case of Petlad Bulkhidas Mills Co. Ltd. vs. Union of India 2000 (126) ELT 269 (Guj.).
6. Heard and considered.
7. The observation of Commissioner (Appeals) in para 4 of the impugned order is reproduced here as under:-
4. Personal hearing in this case took place on 17.9.2008. During the course of hearing Shri Kelkar, Consultant stated that the appeal is only for penalty. Duty has already been paid. On careful examination of the record, I find that the appellant has challenged only penalty before the lower appellate authority and in the appeal memo also the appellant has not controverted the findings of the lower appellate authority on this point . The duty along with the interest has been paid by the appellants without any protest during the course of investigation and same has not been challenged. Accordingly, the prayer that the demand is not sustainable is not considerable in the facts and circumstances of this case. Further, I find that the appellants submitted that the provisions of Central Excise Act, 1944 are not invokable in this case as CENVAT credit has been taken against input service and Section 83 of the Finance Act deals with the same. The appellants are also submitted that if at all it is applicable of the provision of Section 11A (2B) of Central Excise Act, when they have paid the duty liability of their own only on the basis of duty ascertained by a Central Excise officer and on such amount no penalty is leviable. In this case, I do agree with the submissions made by the appellants that no show-cause notice is warranted. Accordingly, I waive the penalty as the appellant is paid the duty of their own and they have not challenged the same. The waiver of penalty will not affect the duty demand in the facts and circumstances of this case.
8. With these observations the appeal is disposed of.
(Pronounced in Court on .) (Ashok Jindal) Member (Judicial) nsk 5