Custom, Excise & Service Tax Tribunal
M/S. Kesarwani Zarda Bhandar vs Cce, Allahabad on 16 March, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066. BENCH-,,,,,SM Excise Stay Application No.E/S/1876/2011 in Excise Appeal No.E/1470/2011-SM [Arising out of Order-in-Appeal No.31/CE/Alld/2011 dated 25.03.2011 passed by Commissioner (Appeals), Allahabad]. M/s. Kesarwani Zarda Bhandar Appellant Vs. CCE, Allahabad Respondent
Present for the Appellant : Shri.S.P. Ojha, Consultant Present for the Respondent:Shri.Sanjay Jain, DR Coram: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER Date of Hearing/Decision:16.03.2012 ORDER NO. _______________ DATED:________ PER: D.N.PANDA Shri Ojha, ld. Consultant says that appeal may be disposed waiving requirement of pre-deposit, since penalty of Rs.1,23,923/- is under contest. He says that had the appellant utilised the credit taken wrongly penalty would have been imposed. According to him following the Apex Court judgement in the case of Commissioner of Central Excise, Mumbai-I vs. Bombay Dyeing & Mfg. Co. Ltd. reported in 2007 (215) E.L.T. 3 (S.C.) if credit was all along existing in statutory record but not utilized, Revenue was not affected. Therefore, appeal may be allowed waiving penalty imposed.
2. Ld. DR on the other hand says that once credit is taken, appellant has caused prejudice to Revenue. He relies on the decision of the Apex Court in the case of Union of India vs. Ind-Swift Laboratories Ltd. reported in 2011 (265) E.L.T.3 (S.C.).
3. Heard both sides and perused record.
4. Since the dispute is only on the point of levy of penalty, appeal itself is disposed as consented by Revenue and the appellant, waiving requirement of pre-deposit. It is an established fact from the compilation filed by Shri Ojha that credit although was taken to statutory record, at no point of time there was availability of credit less than Rs.1,23,923.40 in record during the impugned period and there was no short fall of the credit by any utilisation. It appears that after two years credit entered in statutory record was reversed i.e. on 5.9.07 although that was taken two years before that. There is no whisper in the order about the intention of the appellant to cause prejudice to Revenue when the authority has not made a finding that making mere book entry, the appellant caused prejudice to Revenue whileno credit was admissible to it. This case does not appear to be wilful suppression from the conduct by the appellant, although appears to be questionable by the fact recorded in the adjudication order at page 5 that at the time of filing of return, the appellant misled the Department. There was no utilisation of the credit. The decision relied upon by Shri Ojha in Bombay Dyeing Case (supra) comes to his rescue since the point of time for utilisation did not arise till reversal. The decision relied upon by Revenue in Indo Ind-Swift Laboratories Ltd. (supra) is clearly in the context of section 11AB of the Central Excise Act and not on the law relating to penalty under section 11AC of Central Excise Act 1944.
5. Penalty proceeding being quasi-criminal in nature the conception, preparation, attempt and commitment should demonstrate contumacious conduct and result in causing prejudice to Revenue. The appellant did not reach to the commitment stage although conception and preparation for taking credit is visible from the credit entry in the statutory record. In absence of attempt and commitment penalty is not exigible. Consequently, the appeal is to be allowed waiving penalty imposed. It is ordered accordingly.
[Dictated & Pronounced in the open Court].
(D.N.PANDA) JUDICIAL MEMBER Anita