At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: ARCHANA WADHWA
For Petitioner: Abhijeet Saha, Advocate And For Respondents: Manoj Kumar, Asst. Commr. (AR)
1. All the three appeals are being disposed of by a common order as the issue involved in all of them is identical.
2. After hearing both sides, duly represented by Shri Abhijeet Saha, learned Advocate appearing for appellant and Shri Manoj Kumar, Authorised Representative for Revenue, I find that the appellant, who are in engaged in the manufacture of medicine shifted their factory from Thane Unit to Ambernath Unit. As the appellant was working under Cenvat Scheme in their Thane factory, the capital goods on which credit had been availed by appellant were also cleared to their Ambernath factory. It is seen that most of the items were cleared on payment of duty and credit was taken at their Ambernath factory. In some cases, while removing the capital goods, the appellant did not pay any duty, which was pointed out to them by subsequent audit by Revenue and they paid the duty along with interest and availed the credit at their new unit at Ambernath. In one of the cases, D.G. set, which was installed at Thane, but was not shifted to their unit at Ambernath, inasmuch as the same was fixed to earth. The appellant did not pay any duty on the same. The audit objected to that on the ground that as the appellant had availed credit in respect of the D.G. set and has surrendered their licence at Thane, they are under legal obligation to reverse the CENVAT credit so availed by them. The appellant agreed to the above proposition and accordingly paid duty of excise on the D.G. set also along with interest.
3. In the above scenario, proceedings were initiated against them for imposition of penalty, resulting in passing the present impugned orders imposing penalties. The challenge in all the three appeals is to imposition of penalties only.
4. The contention of the learned Advocate is that while as shifting their factory, some of the capital goods inadvertently were left out and did not suffer duty. However he submits that the entire exercise is Revenue neutral inasmuch as what was paid by Thane Unit at the time of clearance of capital goods, was available as credit to their Ambernath unit. Similarly in respect of D.G. set, he explains that inasmuch as the same was not being shifted, they entertained a bona fide belief that there was no requirement to either reverse the credit availed in respect of the said D.G. set or to pay any duty. Though they are still of the view that inasmuch as D.G. Set was not being cleared from their factory there was no need to pay any duty, but they paid duty along with interest so as to avoid litigation. In such a scenario no mala fide intention can be attributed to them so as to impose penalty.
5. On the other hand, Revenue's contention, duly represented by learned Authorised Representative is that inasmuch as the appellant had themselves cleared some of the capital goods on payment of duty, clearance of other capital goods without payment of duty is with the mala fide intention. The appellant was aware of the entire legal position and should have discharged their duty liability accordingly.
6. After carefully considering the submissions of both sides, I find that admittedly what was paid by Thane Unit was available as credit to their Ambernath unit, thus leading to a Revenue neutral situation. If that be so, the appellant cannot be held guilty of any mala fide with the intention to evade payment of duty. As such I am of the view that initiation of penal provision against the appellant was neither warranted nor justified. Otherwise also I find that the capital goods were removed in 2008, the differential duty as pointed out by the Revenue, was paid in 2010. In addition interest which is also in the nature of penal provision was also paid by the appellant. Show-cause notice for imposition of penalty was issued after a gap of 2 years i.e. 16.04.2012. This only reflects upon the uncertain mind of Revenue and is also hit by the provision of law
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under Section 11A (2B) of the Central Excise Act, 1944, which is to be effect that in case an assessee pays duty along with interest, proceeding should have been held to be finalized by Revenue and no further proceeding should be initiated. Inasmuch as I have already held that there cannot be any mala fide intention on the part of the assessee, I set aside the penalty imposed on the appellant and allow all the three appeals to that extent.