At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
By, THE HONOURABLE MRS. ARCHANA WADHWA
By, MEMBER (JUDICIAL)
For the Appellants: Ms. Jaydeep, Advocate. For the Respondent: Ms. Suchitra Sharma, DR.
Mrs. Archana Wadhwa, J.
1. The very short issue involved in the appeals is that the appellant availed CENVAT credit of duty paid on the capital goods to the extent of 100% during the financial year 2004-05, 2005-06 and 2006-07, whereas they were required to avail 50% of the credit in the first financial year in which the capital goods were received and the balance 50% was to be availed during the next financial year.
2. In the above background, proceedings were initiated against them by way of issuance of Show Cause Notice dated 05.02.2008, proposing denial of the entire 100% credit. The original adjudicating authority confirmed the proposal in the Show Cause Notice and also imposed penalty of Rs. 2 lakhs.
3. On appeal against the above order, Commissioner (Appeals) observed that the balance 50% of the credit was available to the appellant in the next financial year and as such, the confirmation of the same is not justified. He also observed though the appellant has taken the entire 100% credit in the first financial year itself, but they have utilised 50% of the credit after their entitlement to the same. As such, he set aside the confirmed duty demand but confirmed the interest and imposed penalty of Rs.25,000/-.
Hence, the present appeal.
4. Ld. Advocate appearing for the appellant submits that the demand in question is barred by limitation having been raised beyond the normal period. She submits that the entire facts were available to the Revenue in as much as the credit was taken and reflected in the statutory records. In any case, the said credit, though taken, was not utilised before they became entitled to avail the balance 50%. As such, she by relying upon the decision of the Honble High Court of Karnataka in the case of CCE&ST, LTU, Bangalore Vs. Bill Forge Pvt. Ltd. [2012 (279) E.L.T. 209 (Kar.)] submitted that the confirmation of interest and penalty were not called for.
5. After hearing both the sides, I find that the short dispute in the present appeal relates to confirmation of interest in respect of excess availment of credit. It stands observed by the Commissioner (Appeals) that though the credit was availed premature but the same was actually utilised after it became due to the assessee. In such a scenario, the law declared by the Honble High Court of Karnataka in the case of Bill Forge, supra would apply. The said decision stands followed by the Tribunal in number of subsequent judgements. One such reference can be made in the case of Balrampur Chinni Mills Ltd. Vs. CCE, Allahabad [2013 TIOL-1142_CESTAT-Delhi]. In terms of the law declared by the Honble High Court of Karnataka, I set aside the confirmation of interest.
6. As regards penalty, the same stands imposed in terms of provisions of Rule 15(1) of CENVAT Credit Rules, 2004, which provides for imposition of penalty not exceeding the duty or Rs.2,000/-, in cases where the assessee takes CENVAT credit in contravention of any of the provisions of these Rules. It is seen that no mala fide intent condition is pre-requisite for imposition of penalty under the said sub-rule. Admittedly, in the present case, appellants have taken the excess credit though not utilised, in contravention of provisions of sub
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-rules. As such, I am of the view that the appellant is liable to penalty in terms of the said Rule. However, keeping in view that the excess credit, though taken by the assessee, was not actually utilised by them and as such no undue gain stands availed by them. Accordingly, for contravention of the provisions, I impose the penalty of Rs.2,000/- upon the appellant.