M/S Cardkem Pharma Pvt.Ltd vs Commissioner, Central Excise & Service ...

Appeal No.E/1108/2011 [Arising out of OIA No.BC/134/Surat-II/2011, dt.20.06.2011, passed by Commissioner (Appeals), Central Excise & Service Tax, Surat]

M/s Cardkem Pharma Pvt.Ltd. Appellant

Vs

Commissioner, Central Excise & Service Tax, Surat-II Respondent

Represented by:

For Appellant: Shri Nitin Chauhan, Employee of Appellant Company.

For Respondent: Shri L. Tendupatra, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial)

1. Whether Press Reporters may be allowed to see the No 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 of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL)

Date of Hearing/Decision:26.03.2015

Order No. A/10280/2015, dt.26.03.2015

Per: P.K. Das

1. Shri Nitin Chauhan, Purchase Executive of the Appellant Company requested for adjournment.

2. After hearing the learned Authorised Representative, I find that the appeal may be decided at this stage.

3. After hearing the learned Authorised Representative appearing for the Revenue and on perusal of the records, I find that the Adjudicating authority denied the CENVAT Credit of Rs.34,714.00 alongwith interest and imposed penalty of equal amount, which was upheld by the Commissioner (Appeals). The appellant availed the credit during the period from December 2004 to March 2005 and thereafter, fire occurred in the factory and therefore, the documents were destroyed in the fire. The Central Excise Audit party during the audit in the year 2007-08, directed them to produce the documents. The appellant failed to produce the documents destroyed in fire. A show cause notice dt.15.7.2009 was issued, proposing to deny CENVAT Credit along with interest and penalty.

4. The appellant contested the demand on merit as well as on limitation. Both the authorities below have not disputed that the fire occurred in the appellants premises during the said period. The only issue is that destruction of these documents was not recorded in the Panchnama. I find that the demand is barred by limitation. Both the authorities below have not given any specific finding that the Appellant had suppressed the fact with intent to evade payment of duty. On the contrary, it is evident that the appellant has availed the credit in December 2004 to March 2006 and filed monthly return timely to the Central Excise Department. There is no suppression of facts with intent to evade payment of duty and the extended period of limitation cannot be invoked and therefore, the imposition of penalty is unwarranted. Accordingly, the impugned orders are set aside and the appeal filed by the appellant is allowed.

(Dictated & Pronounced in Court)

(P.K. Das) Member (Judicial)

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