Commissioner Of Customs ,Central ... vs M/S. Victory Electricals

[Arising out of Order-In-Appeal No 96/2013 dated 18/10/2013 passed by Commissioner of Customs, Central Excise & Service Tax (Appeals-II), HYDERABAD-IV ]

For approval and signature:

HON'BLE SHRI ARCHANA WADHWA, JUDICIAL MEMBER

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?

Commissioner of Customs ,Central Excise and Service Tax Hyderabad-IV Commissioneate, POSNETT BHAWAN, TILAK ROAD, RAMKOTI, HYDERABAD  500 001. ANDHRA PRADESH Appellant(s)

Versus

M/s. Victory Electricals Sy.No.853, Industrial Estate, Medchal Mandal R.R.DIST - 501401 AP Respondent(s)

Appearance:

Mr. N. Jagadish, Superintendent (AR) For the Appellant

Mr. K. Krishnamurthy, Consultant For the Respondent

Date of Hearing: 09/01/2015

Date of Decision: 09/01/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 20043 / 2015

Per : ARCHANA WADHWA

Being aggrieved by the order of the Commissioner (A) vide which the penalty imposed on the respondent was set aside, Revenue filed the present appeal. After hearing both the sides, I find that the assessee availed CENVAT credit of duty paid on inputs as also input services which were not utilized by their Head Office at Hyderabad but were inputs for their Chennai Unit. According to the appellant, it was taken on a mistaken belief that they were entitled to the credit. However, on being pointed out by the authorities, they immediately reversed the same, even before the issuance of the show-cause notice.

2. The contention of the learned advocate appearing for the respondent is that there is no mala fide or any suppression on their part inasmuch as the credit taken was being reflected in their ER-1 Returns. In such a scenario, the imposition of penalty has been rightly set aside by the Commissioner (A). Learned DR appearing for the Revenue submits that the simple fact that the credit was reflected in ER1- returns would not impart any knowledge to the Revenue Officer that the credit is in respect of the inputs which stands actually utilized at Chennai.

3. While I agree with the above submission of the learned DR, I find that the imposition of penalty on an assessee does not depend upon the knowledge of the Revenue Officer. The ingredients for invoking the penal provision are relatable to the mala fide on the part of the assessee. When an assessee is reflecting the entire credit availed by him in ER-1 Returns, the same reflects absence of any suppression or mis-statement or any mala fide on their part. As such, in my view, the Commissioner (A) has rightly observed that this is not a case for imposition of penalty.

4. In view of the above, the stay petition as also the appeal filed by the Revenue is rejected.

(Order pronounced and dictated in open court)

ARCHANA WADHWA JUDICIAL MEMBER rv 3