C.C.E. & S.T., Jammu & Kashmir vs Met Trade India Ltd

[Arising out of Order-in-Appeal No.98-99/CE/APPL/CHD-II(J&K)/2013 dated 13.03.2013 passed by the Commissioner of Central Excise (Appeals), Chandigarh-II]

For approval and signature:

HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) 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?

C.C.E. & S.T., Jammu & Kashmir Appellant

Vs.

Met Trade India Ltd.  Respondent

Present for the Appellant :Shri G.R. Singh, DR Present for the Respondent: None

Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)

Date of Hearing/Decision: 24.07.2015

Final ORDER NO. _54267/2015__

PER: S.K. MOHANTY

Brief facts of the case are that during the disputed period, the respondent availed inadmissible Cenvat credit on education cess and S & H Education Cess. The Department initiated proceedings for recovery of the education cess wrongly taken by the respondent. The show cause notices culminated in the adjudication orders dated 15.03.2012 and 19.03.2012, wherein the education cess of Rs. 8,13,635/- and Rs.59,094/- for the above disputed period were confirmed. Besides, equal amount of penalty were imposed on the appellant. In appeal, the Commissioner (Appeals) vide the impugned order dated 13th March, 2013 has set aside the penalty imposed by the Adjudicating Authority on the ground that the issue of admissibility of refund of education cess was under dispute in view of the divergent judgments by the judicial forums and that since, the dispute was ultimately settled by the Tribunal in the case of M/s. Jindal Drugs Ltd. reported in 2011 (267) ELT 653 (Tri. Delhi), the provisions of Rule 25 of the Central Excise Rules, 2002 read with section 11AC of the Central Excise Act, 1944 cannot be invoked for imposition of penalty.

5. Heard Shri G.R. Singh, ld. D.R. for the Revenue. None appeared for the respondent.

6. The issue as to whether education cess and secondary higher education cess were covered under exemption Notification No. 56/02 and admissibility of refund thereof was debatable and there were divergent views by this Tribunal. The issue was finally settled in the case of Jindal Drugs Ltd. (supra). Since the issue was undecided, there was possibility on the part of the assessee to interpret the position in view of the decisions taken by the Tribunal in the case of Bharat Box Factory Ltd. vs. Commissioner of Central Excise reported in 2007 (214) ELT 534 (Tri.-Del.). Since, there is no wilful contravention in this case by the Respondent, I am of the view that penalty cannot be imposed under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act 1944.

7. Therefore, I do not find any infirmity in the impugned order passed by the Commissioner (Appeals). The appeal field by Revenue is dismissed.

(Dictated and pronounced in the open Court)

(S.K. MOHANTY) MEMBER (JUDICIAL)

Anita

0 3 E/57408/2013 EX. [SM]