Custom, Excise & Service Tax Tribunal
M/S Diamond Cements vs Cce, Bhopal on 4 September, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. I DATE OF HEARING/DECISION : 04/09/2014. Excise Appeal Nos. 3808-3809 of 2005 [Arising out of the Order-in-Appeal No. 54-55/CE/BPL/2005 dated 28/08/2005 passed by The Commissioner (Appeals), Customs & Central Excise, Bhopal.] For Approval and signature : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, 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 would 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 : Department Authorities? M/s Diamond Cements Appellant Versus CCE, Bhopal Respondent
Appearance Shri Amit Jain, Advocate for the appellant.
Shri M.S. Negi, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 53638-53639/2014 Dated : 04/09/2014 Per. Rakesh Kumar :-
The facts leading to filing of these appeals are, in brief, as under.
1.1 The appellant are manufacturers of cement chargeable to Central Excise duty. The dispute is in respect of payment of duty during the month of August 2000. During that period, as per the provisions of Rule 173G (1) of Central Excise Rules, 1944 an assessee was required to pay duty for the first fortnight of the month by 20th of that month and for the second fortnight of the month, other than the month of March, by 5th of the succeeding month. In terms of Rule 57AB (1B) of the Central Excise Rules, 1944 while paying duty in terms of Rule 173G (1) the Cenvat credit shall be utilized only to the extent such credit is available on the 15th day of a month for payment of duty relating to the first fortnight of the month of the last date of the month for payment of duty relating to second fortnight of the month. The allegation against the appellant is that while the appellant paid the duty for the first fortnight of August 2000 by utilizing the Cenvat credit of Rs. 9,67,124/-, as on 15/08/2000 they had the credit balance of only Rs. 7,88,006/- in the Cenvat credit account and similarly for payment of duty for the second fortnight of August 2000, while they utilized credit of Rs. 33,00,407/- on 05/09/2000, the Cenvat credit balance as on 31/08/2000 was Rs. 25,47,691/- and on this basis it is alleged that during August 2000 there is short payment of duty to the extent of Rs. 9,31,834/-. It is on this basis that the Additional Commissioner vide order-in-original dated 13/04/05 confirmed the duty demand of Rs. 9,31,834/- against the appellant alongwith interest and imposed penalty of equal amount on them under Rule 173Q (1) of Central Excise Rules, 1944.
1.2 The appellant had another unit and in respect of that unit also, there was similar short payment by utilizing more credit than the credit available as on 15/08/2000 and 31/08/2000 and in that unit, the short payment alleged was Rs. 25,83,937/-. The Jurisdictional Additional Commissioner vide order-in-original dated 13/04/05 confirmed the duty demand of Rs. 25,83,937/- against the appellant alongwith interest and imposed penalty of equal amount on them under Rule 173Q (1) of the Central Excise Rules, 1944.
1.3 In course of proceedings before the Additional Commissioner the appellant pleaded that at that time they were maintaining separate Cenvat credit account in respect of inputs and capital goods, that both the units had sufficient Cenvat credit balance available as on 15/08/2000 and 31/08/2000 if the capital goods Cenvat credit is also taking into account and that in view of this there was no short payment, but this plea was not accepted.
1.4 On appeals being filed to Commissioner (Appeals) against both the orders, the Commissioner (Appeals) by a common order-in-appeal No. 54-55/APPL/BPL/2005 dated 28/08/05 upheld the Additional Commissioners order except for reducing the penalty. Against these orders of the Commissioner (Appeals), these two appeals have been filed.
2. Heard both the sides.
3. Shri Amit Jain, Advocate, the learned Counsel for the appellant, pleaded that during the period of dispute, the appellants were maintaining separate Cenvat credit registers for inputs and capital goods, that total Cenvat credit in respect of inputs and capital goods in both the units as on 15/08/2000 and 31/08/2000 was more than sufficient for payment of duty, that the Department has looked at only the Cenvat credit balance in respect of the inputs, which is not correct, that the Cenvat credit in respect of capital goods also could be utilized for payment of duty and just because separate debit entry was not made in the capital goods Cenvat credit account, it cannot be presumed that the same was not debited, that there is no short payment of duty, that the fact that both the units as on 15/08/2000 and 31/08/2000 had the sufficient Cenvat credit if the capital goods Cenvat credit in balance in RG-23C Pt. II account is taken into account and this fact is not disputed and that in view of this, the impugned order is not correct.
4. Shri M.S. Negi, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that even if there was sufficient balance in capital goods Cenvat credit account in RG-23C Pt. II, the same had not been debited and that as such the appellant during August 2000 had utilized more credit than the balance in RG-23A Pt. II account, and as such there has been short payment of duty by both the units of the appellant company. He, therefore, pleaded that there is no infirmity in the impugned order.
5. We have considered the submissions from both the sides and perused the records.
6. It is not disputed by the Department that during the period of dispute, the appellant were also availing capital goods Cenvat credit in addition to the input duty Cenvat credit goods. While the account of input duty Cenvat credit was being maintained in RG-23A Pt. I and Pt. II register, the account of the capital goods Cenvat credit was being maintained in RG-23C I and II register. From the chart given in para 6 of the impugned order, it is seen that while in case of Unit I, the total Cenvat credit including the capital goods Cenvat credit available as on 15/08/2000 and 31/08/2000 was Rs. 1,11,09,202/- and Rs. 1,28,68,887/- respectively, the utilization of Cenvat credit for payment of duty on these dates was Rs. 9,67,124/- and Rs. 33,00,407/- respectively and Cenvat credit available was much more than the amount which was utilized for payment of duty and as such it cannot be said that there was short payment of duty. Just because the debit entry of the duty paid was made in RG-23A Pt. II register, it cannot be inferred that the appellant had short paid the duty. Similarly, in respect of Unit II, the total Cenvat credit including capital goods Cenvat credit available as on 15/08/2000 and 31/08/2000 was Rs. 55,11,200/- and Rs. 48,92,898/- respectively while the utilization of the credit for payment of duty was Rs. 41,77,000/- and Rs. 39,66,325/- and thus the total credit available on both the dates was much more than the credit utilized for duty payment. In this unit also the debit entry for the full amount was made only in RG-23A Pt. II register and from this, it cannot be concluded that the duty had been short paid. The impugned order, therefore, is not sustainable. The same is set aside. The appeals are allowed.
(Operative part of the order pronounced in the open court.) (Justice G. Raghuram) President (Rakesh Kumar) Member (Technical) PK ??
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