Custom, Excise & Service Tax Tribunal
Tata Advanced Materials Ltd vs Commissioner Of Central Excise, ... on 23 January, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/2481/2012-SM [Arising out of Order-In-Appeal No. 136/2012 dated 25/05/2012 passed by the Commissioner of Central Excise, Bangalore] For approval and signature: HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Tata Advanced Materials Ltd. No.10, Jigani Industrial Area, Jigani, Anekal Taluk, Bangalore - 526 106 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:
Mr. Dayanand K., CA Vishnu Daya & Co.
Chartered Accountants GF No. 7, Karuna Complex, 337, Sampige Road, Malleshwaram, Bangalore 560 003 Karnataka For the Appellant Mr. Mohd. Yusuf, AR For the Respondent Date of Hearing: 23/01/2015 Date of Decision: 23/01/2015 CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER Final Order No. 20152 / 2015 Per : B.S.V. MURTHY Cenvat credit of Rs. 4,47,829/- (Rupees Four Lakhs Forty Seven Thousand Eight Hundred and Twenty Nine only) has been denied and demanded with interest on the ground that the credit was not admissible. Penalty also has been imposed.
2. Learned CA on behalf of the appellant submits that the first item of demand is against the credit taken twice on the same documents. He submits that even though the appellant has separate sections for handling cenvat credit account and accounting matters, there was omission on the part of the section which was handling cenvat credit availment. By mistake on the same copy credit was taken twice. This has happened because appellant received two copies of bills of entry and on both, credit was taken separately. The second item is a small amount of Rs. 8,000/- (Rupees Eight Thousand only) which happened because of clerical error. On the same document this amount was taken in excess. The third item of demand is for Rs. 1,55,426/- (Rupees One Lakh Fifty Five Thousand Four Hundred and Twenty Six only) which has arisen because credit was taken on the warehousing bill of entry instead of bill of entry for home consumption. The fourth demand has arisen because the appellant took credit of service tax paid on services attributable to 100% EOU which was located in the same compound by mistake. The last demand has arisen because the appellant had imported some goods which were resent without using the same at all. They had reversed this credit at the time of re-export. Department has demanded the amount on the ground that the input/capital goods have not been used for the purpose for which they were received in the factory. It was submitted by the learned CA that the last demand should not have been confirmed since the appellant had reversed the entire amount of credit at the time of re-export. Nevertheless at this stage he does not want to dispute the same.
3. He submits that the appellant has not disputed the demand for cenvat credit and the same has been discharged with interest even though certain portion of the demand was beyond the normal period. Further he submits that appellant is having crores worth cenvat credit in their account and dealing with voluminous documents. All the work was handled by employees who did not derive any benefit by taking wrong cenvat credit. Therefore intention to evade duty by mis-declaration cannot be sustained in this case. Suppression of facts also would not arise since as per the statute such details are not required to be given to the department. That being the position, in fact even though the appellant could have claimed limitation, they had paid the entire amount of cenvat credit with interest. He submits that having regard to these facts and circumstances, penalty may be waived.
4. Learned AR would submit that the details would show that the appellants have not created systems which will ensure that cenvat credit is not wrongly utilized. He submits that this should not be taken with a lenient view.
5. I have considered the submissions. I find that when voluminous documents are handled, some mistakes do happen and since appellants have chosen to pay the entire amount of cenvat credit including the last item the correctness of which is debatable, I consider that appellant deserves a lenient treatment as regards penalty. In view of the above, I consider since the appellant is not contesting the demand and have paid the entire amount with interest, penalty can be waived. In the normal course the demand could have been limited to the normal period in the absence of any intention to evade duty. Cenvat credit with interest voluntarily paid by the appellant stands upheld as not contested. Penalty imposed is set aside. Appeal is disposed of in the above terms.
(Order pronounced and dictated in open court) (B.S.V. MURTHY) TECHNICAL MEMBER iss