M/S. Hindustan Petroleum Corpn. Ltd vs Commissioner Of Central Excise, Mumbai

[Arising out of Order-in- Appeal No. BR/369/TH-1/2012 dtd. 9/10/2012 passed by the Commissioner (Appeals) Central Excise, Mumbai]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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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 : 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? =======================================================

M/s. Hindustan Petroleum Corpn. Ltd. : Appellants

VS

Commissioner of Central Excise, Mumbai. : Respondent

Appearance

Shri. Sachin Chitnis, Advocate for the Appellant Shri. Sanjay Hasija, Superintendent (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 12/5/2015 Date of decision: 12/5/2015

ORDER NO. Per : Ramesh Nair

This appeal is directed against Order-in- Appeal No. BR/369/TH-1/2012 dtd. 9/10/2012 passed by the Commissioner (Appeals) Central Excise, Mumbai, wherein Ld. Commissioner (Appeals) upheld the order-in-original dated 9/3/2010 rejecting the appeal of the appellant. The issue involved in the present case is demand of interest under Section 11AB and penalty under Section 11AC on the wrong availment of Cenvat Credit of Rs. 9,62,834/- which had been reversed by the appellant on 12/10/2007.

2. Shri. Sachin Chitnis, Ld. Counsel for the appellant submits that regarding the disallowance of the Cenvat Credit on Outdoor Transportation service, show cause notices were issued wherein demand of wrongly availed Cenvat Credit for the period of Oct-2005 to Dec.2007, interest under Section 11AB and penalty under Section 11AC were proposed and the same were confirmed by the adjudication order No. F-II/254 to 257/07 dated 5/11/2007 and F-II/112 to 116/07 dated 30/6/2008. It is his submission that the amount of Cenvat Credit of Rs. 9,62,834/- is part of the total amount of Cenvat Credit of Rs. 6,30,550 and Rs. 20,85,993/-which were covered under the proceedings of adjudication order No. F-II/254 to 257/07 dated 5/11/2007 and F-II/112 to 116/07 DATED 30/6/2008 therefore the proposal for demand of interest and penalty in respect of Cenvat Credit of Rs. 9,62,834/- as already been covered by adjudication order No. F-II/254 to 257/07 dated 5/11/2007 and F-II/112 to 116/07 dated 30/6/2008 therefore the present demand of interest and penalty is nothing but duplication of same proposal and confirmation which was made through adjudication order No. F-II/254 to 257/07 dated 5/11/2007 and F-II/112 to 116/07 dated 30/6/2008. In view of this facts, present proceedings is infructuous being duplication of demand.

3. Shri. Sanjay Hasija, Ld. Superintendent(A.R.) appearing on behalf the Revenue fairly concedes the above facts.

4. On careful consideration of submission made by both sides and perusal of the record, I find that demand of interest and penalty in the present proceedings has already been covered vide adjudication order No. F-II/254 to 257/07 dated 5/11/2007 and F-II/112 to 116/07 dated 30/6/2008 and the matter is on way of its further proceedings. In view of this fact there is no doubt that the demand in the present case is nothing but duplication of demand which has been already been covered in the proceedings of adjudication order No. F-II/254 to 257/07 dated 5/11/2007 and F-II/112 to 116/07 dated 30/6/2008. In view of this fact, the impugned order is not sustainable therefore the same is set aside. The appeal is allowed however demand proceedings raised in the adjudication order No. F-II/254 to 257/07 dated 5/11/2007 and F-II/112 to 116/07 dated 30/6/2008 shall not be influenced by this order.

(Dictated in court)

Ramesh Nair Member (Judicial) sk

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