Custom, Excise & Service Tax Tribunal
M/S. P.S. Steel Tubes Ltd vs Cce, Raipur on 31 December, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI Excise Appeal NoE.1696/2012 [SM] [Arising out of Order-In-Appeal No.05/RPR-II/2010 dated 25.01.2011 passed by the Commissioner of Central Excise (Appeals), Raipur ] M/s. P.S. Steel Tubes Ltd. Appellant Vs. CCE, Raipur Respondent
Appearance: Shri Bipin Garg, Advocate for the appellant.
Shri G.R. Singh, AR for the respondent.
For approval and signature:
Hon'ble Shri B. Ravichandran, 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 authoritative report or not?3
Whether Their Lordships wish to see the fair copy of the Order?4
Whether Order is to be circulated to the Departmental authorities?
CORAM: Hon'ble Mr. B. Ravichandran, Member (Technical) Final Order No.53850/2015 Dated:31.12.2015 Per B. Ravichandran:
The appeal is against the order dated 25.01.2011 of the Commissioner (Appeals-II), Raipur.
2. The facts of the case, in brief, are that the appellants availed cenvat credit on outward freight involving transportation of goods beyond factory gate. Consequent upon audit of records of the appellant in January, 2009, the appellant were advised to reverse the credit so taken on outward freight as they were not entitled for the same. The appellant reversed the full amount of Rs.4,83,884/- on 1.3.2009. A show cause notice dated 15.10.2009 was issued to the appellant for disallowing the said credit and also to impose penalties. The case was adjudicated by the Original Authority vide Order dated 20.08.2010. He disallowed the said credit amount and appropriated the amount already reversed. A penalty of Rs.2,000/- is imposed on the appellant. The Department preferred the appeal against this order for non-imposition of equal penalty on the appellant. Ld. Commissioner (Appeals) vide impugned order dated 25.01.2011 allowed the Departments appeal and imposed equal amount of penalty under Section 11 AC of the Central Excise Act, 1944. Aggrieved by this order, the appellant preferred this appeal.
3. Ld. Counsel for the appellant submits that though the appellant availed credit on outward freight, they have never utilized the same as there were doubts and disputes on the said issue. On being pointed out by the officers, after audit, they reversed the entire credit though under protest. The show cause notice for recovering the already reversed amount and to impose penalty was issued after more than six months of the reversal. In the facts and circumstances of the case, ld. Counsel pleads that there is no ground for imposing equal penalty as there is no allegation of suppression, fraud, etc. in this case.
4. Ld. AR reiterated the findings of the ld. Commissioner (Appeals). He further submitted that since the show cause notice was issued invoking extended period, it is not open to the Original Authority to restrict himself to the recovery of irregular credit without imposing mandatory equal penalty.
5. On hearing both the sides and on perusal of the appeal records, I find that the proceedings against the appellant were initiated much after the disputed amount was fully paid. It would appear the payment under protest has prompted such proceedings. In any case, the appellant never disputed the issue on merits from the beginning except to the fact that the reversal was made under protest. This is also a fact that the credit availed was reflected in the statutory records and the eligibility was examined by the audit from such records only. The Original Authority considered the facts of the case and did not impose penalty. The Appellate Authority imposed equal penalty on the ground that the demand covered extended period. As already noted when the need for issue of demand itself is not properly justified, there is no ground to impose equal penalty in the present case.
6. Considering the above facts and discussion, I find that the impugned order is not sustainable with reference to imposition of equal penalty on the appellant. Accordingly, the appeal is allowed.
[Order dictated & pronounced in open court on 31.12.2015] ( B. Ravichandran ) Member (Technical) Ckp.