M/S. Shree Khedut Sahakari Khand Udyog ... vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIA-CCEA-SRT-II-SSP-232-U-S-35A dated 17.01.2013, passed by Commissioner (Appeals) Central Excise, & S.T., Surat)

M/s. Shree Khedut Sahakari Khand Udyog Mandli Limited: Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Surat : Respondent (s)

Represented by :

For Appellant (s) : Shri Rahul Gajera, Advocate For Respondent (s) : Shri S.K. Shukla, Authorised Representative

For approval and signature :

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

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

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

Date of Hearing / Decision : 18.09.2015

ORDER No. A/11331/2015 Dated 18.09.2015

Per : Mr. P.K. Das;

After hearing both the sides and on perusal of the records, I find that the appellant availed CENVAT credit on capital goods and also claimed depreciation under Section 32 of the Income Tax Act, 1961. The appellant immediately reversed the wrongly availed credit amount of Rs. 1,78,772/- by RG-23 Part-II Entry Serial No. 83(1) dated 19.03.2009. A show cause notice was issued on 21.06.2011 and proposed imposition of penalty of equal amount of CENVAT credit, under Section 11AC of the Central Excise Act, 1944. The adjudicating authority appropriated the amount of duty as deposited and also imposed penalty of equal amount of duty under Section 11AC of the Act. Commissioner (Appeals) upheld the adjudication order.

2. The learned Advocate on behalf of the appellant submits that they have already reversed the amount of credit in 2009 and imposition of penalty under Section 11AC is not warranted. On perusal of the records, I find that there is no material available of suppression of fact with intent to evade payment of duty and therefore, Section 11AC cannot be invoked. This is supported by the decision of the Tribunal in the case of CCE, Pune vs. Hemnil Metal Processors Pvt. Limited  2010 (261) ELT 429 (Tri. Mumbai). In view of that, penalty imposed under Section 11AC is set-aside. Appeal filed by the appellant is disposed of. (Order dictated and pronounced in the Court)

(P.K. Das) Member (Judicial) .KL

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