Custom, Excise & Service Tax Tribunal
M/S Softesule Pvt. Ltd vs Commissioner Of Central Excise, ... on 30 September, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. E/549/12 (Arising out of Order-in-Appeal No. BC/258/BEL/2012 dated 19.1.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-III). For approval and signature: Honble Shri Anil Choudhary, 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 : Yes 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 Softesule Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Mumbai-III Respondent Appearance: Ms. Anjali Hirawat, Advocate for Appellant Shri Ashutosh Nath, Asstt. Commissioner (AR) for Respondent CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 30.09.2014 Date of Decision: 30.09.2014 ORDER NO. Per: Shri Anil Choudhary
This appeal is arising out of Order-in-Appeal No. BC/258/BEL/2012 dated 19.1.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-III.
2. The brief facts of the case are that the appellant, M/s Softesule Pvt. Ltd., are engaged in the manufacture of pharmaceutical products falling under Chapter 30 of the First Schedule to the Central Excise Tariff Act, 1985. The appellants availed credit of duty paid on inputs, capital goods and input services in terms of Cenvat Credit Rules, 2004. The factory of the appellant was audited by the CAPP-EA 2000 Audit team for the year 2008-09. During the course of the audit it was found that the appellants have availed CENVAT Credit amounting to Rs.2,83,072/- in respect of Bill of Entry No. 731935 twice i.e. on 24.9.2008 and on 1.12.2008 vide Entry Nos. 967/45 and 1333/63 respectively. When the aforesaid factual position was brought to the knowledge of the appellants by the department, the appellants accepted their mistake and made payment of the amount of CENVAT Credit availed in excess along with interest. Under the aforesaid facts and circumstances, the department issued a show-cause notice to the appellant proposing to appropriate an amount of Rs.3,19,872/- (Rs.2,83,072 + Rs.36,800/-) paid by the appellant towards excess CENVAT Credit availed and interest thereon. The show-cause notice also proposed to impose penalty on the appellants under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 on the sole ground that the aforesaid fact of excess availment of credit came to the knowledge of the department at the time of audit and the said fact had been suppressed by the appellant till such time.
2.1 The said show-cause notice was adjudicated vide Order-in-Original dated 10.10.2011 confirming the demand along with interest and also penalty of equal amount was imposed under Rule 15(2) of Cenvat Credit Rules, 2004 read with provisions of Section 11AC of the Central Excise Act.
2.2 Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who vide the impugned order, was pleased to reject the appeal and accordingly, being aggrieved, the appellant is before this Tribunal.
3. The learned Counsel for the appellant submits that under the facts and circumstances, there was bona fide mistake in taking the credit twice on the same Bill of Entry and which was, on being pointed out by the Revenue, the amount of tax was immediately deposited alongwith interest under intimation to the Revenue and accordingly, it was entitled to the benefit under Section 11A(2B), which provides that where the duty of excise short levied/short paid etc., the assessee may at his own ascertainment or on the basis of duty ascertained by the Central Excise Officer, before service of notice, who may under sub-section (1), pay the duty with interest and inform the Central Excise officer of such payment under writing, who on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid, save and except in case of fraud, collusion, etc. as mentioned in explanation (1) of sub-section 2B.
3.1 The learned Counsel for the appellant further draws my attention to the show-cause notice on record, wherein no allegation has been made of fraud, collusion, suppression etc. and in the show-cause notice it is admitted that the appellant has mistakenly taken credit twice. Accordingly, the appellant prays for allowing the appeal.
4. The learned DR relies on the impugned order and states that taking credit twice on the same Bill of Entry is definitely fraudulent and mischief, but on query from Bench, he is unable to point out any allegation in the show-cause notice amounting to mis-conduct on the part of the appellant.
5. Having considered the rival contentions, I find that admittedly there is no contumacious conduct or fraud on part of the appellant and further the appellant has paid the duty with interest under intimation before the issue of show-cause notice. As they have deposited the tax and interest in question on 17.12.2009, whereas the show-cause notice was issued on 27.4.2011 i.e. after more than 18 months of such deposit and intimation given by the appellant. Thus, I hold that the appellant is entitled to the benefit under sub-section 2B of Section 11A of the Central Excise Act. Thus, the appeal is allowed in favour of the appellant and impugned order is set aside. Thus, the appeal is allowed with consequential benefit, if any.
(Dictated and pronounced in Court) (Anil Choudhary) Member (Judicial) Sinha 4