Commissioiner Of Central Excise, ... vs M/S.Goyal Coaltar (P) Ltd

(Arising out of Order-in-Appeal No.26/CE/BBSR-II/2012 dated 03.10.2012 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M.MISRA, 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 Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

Commissioiner of Central Excise, Customs & Service Tax, BBSR-II

Applicant (s)/Appellant (s)

Vs.

M/s.Goyal Coaltar (P) Ltd.

Respondent (s)

Appearance:

Shri Anirudha Roy, Supdt.(AR) for the Appellant (s)

NONE for the Revenue (s)

CORAM:

Honble Dr. D.M.Misra, Member(Judicial)

Date of Hearing/Decision :- 26.8.2015 Date of Pronouncement :- 26.8.2015

ORDER NO.FO/A/75455/2015

Per Dr. D.M.Misra.

None present for the Respondent. Heard the ld.AR for the Revenue.

2. This is an Appeal filed against Order-in-Appeal No.26/CE/BBSR-II/2012 dated 03.10.2012 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.

3. The ld. A.R. for the Revenue, submits that the Appellant had availed inadmissible cenvat credit of Rs.21,880/- on inputs, namely, GC Sheet which were used to cover their Distillation Column. The entire CENVAT credit was later reversed. The ld.A.R. for the Revenue, submits that the present Appeal relates to non-imposition of equivalent penalty under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. He submits that both the authorities below had erred by not imposing penalty under Rule 15(2) of CCR,2004 read with Sec.11AC of CEA,1944.

4. I have carefully gone through the findings of the ld.Commissioner (Appeals), recorded at Para 4 of the impugned order; which reads as follows :

I have carefully examined the case record and considered the submissions made in the appeal. Present case has been made out of the scrutiny of ER-1 returns by the jurisdictional Superintendent. The respondent is a registered assessee. They have availed cenvat credit on G C Sheets as inputs claiming the same as correct in view of decision of various CESTATs. The adjudicating authority in the impugned order has found that the assessee availed such credit with the bonafide belief that it was admissible to them. While he ordered for recovery of same under Rule 14 of CCR,2004, he refrained from imposing higher penalty on the ground that there was no malafide intention or any suppression of fact on part of the respondent. Appellant has contended that since the wrong availment of cenvat credit has been reversed after show cause notice, sub-section 10 of section 11A of the Central Excise Acts, 1944 is violated, and hence the mandatory penalty under Section 11AC read with Rule 15(2) of the Cenvat Credit Rules, 2004 is unavoidable in view of the decision of Honble Supreme Court of India in the case of Dharmendra Textile Processors and Others reported in 2008 (231) ELT 3 (SC).

I find the facts and circumstances of the case cited by the appellant is different from the present case inasmuch as the matter before the Honble Apex Court was whether mens rea is required to be proved for imposing penalty under Rule 96ZO and Rule 96ZQ in the erstwhile Central Excise Rules relating to compound levy scheme. These rules did not mention mens rea as an essential requirement. So the Honble Court held that the penalty under these Rules is statutory penalty. Therefore, the decision of Honble Apex Court can not be made applicable to this case. The show-cause notice in the instant case has been issued on 2nd January, 2008 for the alleged offence committed for the month of December, 2006, for which monthly return has been submitted on January, 2007. In other words, show-cause notice has been issued within the normal period without invoking extended period provision. The findings of the original authority, is self-contained. Section 11A has not been invoked for recovery of cenvat credit in the impugned order and there is no ingredient such as suppression of fact, mis-statement, intent to evade payment of duty etc to justify penalty under section 11AC of the Act.

As such, the contention of the department in the present appeal is un-sustainable. I do not see any reason to interfere with the above findings of the ld.Commissioner (Appeals), which in my opinion, is correct in facts as well in law. Accordingly, the order of Ld. Commissioner(Appeals) is upheld and the Appeal filed by the Revenue being devoid of merit is dismissed.

(Operative part of the order was pronounced in the open court.)

SD/

(D.M.MISRA) MEMBER(JUDICIAL) sm

4 Appeal No.EA-713/12