Custom, Excise & Service Tax Tribunal
Tulsi Extrusions Ltd vs Commissioner Of Central Excise on 4 May, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. E/952/11 (Arising out of Order-in-Appeal No. AKP/NSK/49/2011 dated 28.2.2011 passed by Commissioner of Central Excise & Customs (Appeals), iNashik) For approval and signature: Honble Mr. M.V. Ravindran, 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 : No 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?
================================================ Tulsi Extrusions Ltd. Appellant Vs. Commissioner of Central Excise, Respondent Nashik Appearance: None for appellant Shri N.N. Prabhudesai, Supdt (AR), for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Date of Hearing: 04.05.2016 Date of Decision: 04.05.2016 ORDER NO Per : M.V. Ravindran
This appeal is directed against Order-in-Appeal No. AKP/NSK/49/2011 dated 28.2.2011.
2. None appeared on behalf of the appellant. Since the appeal is of 2011, I take up the appeal for disposal in the absence of any representation from the appellant-assessee.
3. The issue in short in this case is regarding penalty imposed on the appellant on the provisions of Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 for availing and utilizing the Modvat/CENVAT Credit improperly. Appellant has availed CENVAT credit on the inputs which were used for manufacturing of final product which were dutiable. At the same time for some clearances of the final product, appellant claimed the benefit of exemption under notification No.3/2005 (Sl.7). Despite claiming such an exemption appellant did not reverse the CENVAT credit attributable to the inputs gone into manufacturing of such exempted goods. On being pointed out, appellant reversed 8% or 10%, as the case may be, of the value of the exempted goods in his CENVAT account. Revenue authorities issued show-cause notice for appropriating the said amount on the appellant, the interest paid and were also seeking penalty. Both the authorities imposed penalty of equivalent amount.
3. Learned D.R. draws my attention to the facts of the case and also to the contravention which has sought to be charged against the appellant. He would submit that the penalty has been correctly imposed. To support his contention he submits the following case laws:-
(a) Mahindra & Mahindra Ltd. 2007 (211) ELT 481 (Tri. Mumbai)
(b) Union of India v. Chattisgarh Electricity Co. Ltd. 2015 (325) ELT 24 (Chattisgarh)
(c) CCE & C Aurangabad v. Padmashri V.V.Patil S.S.K. Ltd. 2007 (215) ELT 23 (Bom.)
(d) CCE Delhi III v. Machino Montell (I) Ltd.. 2006 (202) ELT 398 (P & H)
(e) S. Raghbir Singh Sandhawalia v. Commissioner of Income Tax AIR 1958 PH 250
4. On perusal of the records it is undisputed that the appellant had availed exemption notification for the clearances of the finished goods without payment of duty and reversed the CENVAT credit on inputs utilized for such exempted goods. He has reversed 8% or 10% of the value of the exempted goods cleared from the factory. The appellant has done so on being pointed out by the department and has also paid interest. I find from the records the first appellate authority in the impugned order had in para 11 categorically recorded that the appellant had been filing regular returns with the authorities and was mentioning the production/clearance of both dutiable and exempted goods with value, duty payable, Notification No. and also the details of CENVAT credit availed and utilized. In my considered view having declared the entire transactions that took place in the appellants premises in returns, it cannot be held that the appellant had suppressed the information from department with intention to evade duty. In view of this, I find that having been paid the amount as per the provisions of Rule 6 along with interest there was no need for visiting the appellant with penalty. Accordingly, I allow the appeal to that extent the same is challenging imposition of penalty.
5. Appeal is allowed to that extent and impugned order to that extent is set aside.
(Dictated in Court) (M.V. Ravindran) Member (Judicial) nsk ??
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1 4Appeal No. E/952/11