TMI Blog2017 (5) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... g to around ₹ 12 lakhs and the assessee has not pressed for the balance amount of ₹ 14,12,184/-, the second amount will also be considered as not being contested with to the demand preceding the case - appeal allowed by way of remand. - E/68/2002, E/278/2002 & E/279/2002 - 40656-406582017 - Dated:- 13-4-2017 - Shri Madhu Mohan Damodhar, Member ( Technical ) Shri C. Saravanan, Advocate For the Assessee Shri A. Cletus, ADC (AR) For the Revenue ORDER The facts of the case are that selective audit was conducted by the department in respect of the assessee M/s.Premier Evolvics Pvt. Ltd. (hereinafter referred to as the assessee) for the period April 1997 to September 1998 in October-November 1998. During the course of audit, apparent discrepancies in availment of cenvat credit to the extent of ₹ 17,19,850/- came to light which amount was paid up by the assessee on being informed by department, ₹ 13,03,646/- through PLA and remaining ₹ 4,16,204/- through RG-23A Account. Assessee apparently realized that the quantum of amount alleged to have been irregularly availed (as alleged by department) was incorrect and they preferred refund claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 57AH) of the Rules read with Section 11AC of the Central Excise and under Rule 173Q of the Central Excise Rules, 1944. 4. This proposed demand covered the period from April 1995 to March 2000 and also had a overlap on the refund claims for the year 1997-98 preferred by the assessee as aforesaid out of which part of the claims had been allowed by the refund sanctioning authority and part was rejected. However, entire claim of ₹ 12,55,746/- [Rs.10,77,586 + 1,78,157] was subsequently allowed by Commissioner (Appeals) as discussed above. 5. These proposals were confirmed in toto by the Commissioner (Adjudication) vide impugned order-in-original dt. 08.11.2011 (impugned order) for appeal E/68/2002 wherein apart from confirming the proposed recovery of cenvat credit of ₹ 26,67,927/- and interest thereon, penalty of ₹ 25 lakhs was also imposed on the assessee. 6. Aggrieved, the assessee had filed an Appeal No.E/68/2002 against this impugned order before this forum. 7. In the first round of litigation before this forum, all these three appeals were disposed of by a common Final Order No.268-270/2008 dt. 26.03.2008, wherein, inter alia, it was decided as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions referred supra and Notification No.14/96-CE (NT), dated 23.7.1996. REFUND CLAIMS NON SPEAKING ORDER 8. The next plea raised by the learned Standing Counsel appearing for the department is that the Tribunal by a non speaking order has dismissed their appeals challenging the partial grant of refund claims by the Deputy Commissioner in favour of the assessee. 9.1 It is seen from the records that the Deputy Commissioner on 30.6.2000 and 27.7.2000 partially rejected the refund claims made by the assessee. Assailing the said orders passed by the Deputy Commissioner, the assessee preferred two appeals and the department also preferred two appeals before the Commissioner of Central Excise (Appeals). The Commissioner of Central Excise (Appeals), by orders dated 28.2.2002 and 1.3.2002, allowed the appeals filed by the assessee and dismissed the appeals preferred by the department. Aggrieved by the order dated 28.2.2002 passed by the Commissioner of Central Excise (Appeals), the Department filed appeals before the Tribunal in Appeal Nos.E/278 279/2002. However, the Tribunal, by order dated 26.3.2008 impugned in these appeals, dismissed the appeals observing as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which they were able to obtain supporting documents evidencing the debit of modvat credit at the time of removal. However, they did not press for refund of ₹ 4,64,167/- only because they could not obtain necessary supporting documents thereof. iii) On account of peculiar nature of the assessee's line of manufacture, huge number of inputs/capital goods are involved and the documentation required for receipt, removals as such etc. would involve large volumes of paper work. iv) They have all the documentary evidence to sustain the quantum of refund claims already made, amounting to ₹ 10,77,586/- and ₹ 1,78,157/-. v) They have no reason to suppress such activities or for that matter indulging in any irregular availment of these amounts, when actual modvat credit availed for the period of dispute worked out to about ₹ 8 crores. vi). Hence there was no intention of any fraudulent intention or malafide and in any case, entire operations was under ERP. vii) Only because they were not able to collect voluminous documents in respect of part of the removals, they had preferred, reduced refund claims, to the extent of ₹ 12,55,743/- ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served: in the light of the law enunciated in the decisions referred supra, the decision of the Tribunal holding that mandatory penalty is not leviable cannot be accepted and accordingly set aside and the matter is remanded to the Tribunal to reconsider this issue afresh in the light of the decisions referred supra and Notification No.14/96-CE (NT), dated 23.7.1996 . For these reasons, Ld. A.R states that mandatory penalty is liable to be imposed in this case. v) Even if the argument is taken that Section 11AC is applicable only w.e.f. 28.9.1996 and hence earlier period cannot be covered by the said section, Rule 173Q which has also been invoked in the SCN and was very much in force during entire period of dispute and said rule could be invoked for the entire period. vi) Extended period has been invoked in the SCN and that is co-existent with mandatory penalty under Section 11AC of the Central Excise Rule, 1944 and hence once suppression is proved there cannot be any escape from mandatory penalty at least for the period after coming into effect of Section 11AC. Hon'ble Madras High Court in the cited judgment has also not accepted the decision of Tribunal holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no removal of goods outside the factory without reversal, they would be able to prove movement of other inputs/capital goods, which have been questioned by the department since they have the requisite documents available for the same. (iv) As earlier stated, although except in respect of balance amount of ₹ 14,12,184/- which they are not pressing only because they are not able to scrutinize voluminous documents, in this scenario, no suppression can be alleged against the assessee. The question of suppression in the instant case would have arisen, if they had availed credit without actual receipt of the inputs or for that matter manipulated entries in RG.23A to enable fraudulent discharge of duty liability. (v) On other hand, impugned inputs / capital goods have also been definitely received by them; there is no dispute that inputs/capital goods have been received initially for the purpose of availment of modvat credit for manufacturing purpose. (vi) In this case also, they had legitimately caused removal of goods either outside the factory or for manufacture. However, due to lack of corroborating documents, they have not claimed refund of part of the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority precisely for lack of non-production of supporting documents and that Commissioner (Appeals) has wrongly allowed the appeals of the assessee by placing reliance on the EDP system documents and on his observations that these had been verified by the Range Superintendent from time to time. Ld. A.R also stresses that acts and omissions of the assessee as put forth in the SCN all point to suppression of facts and extended period can very much be invoked. He has propounded that even though section 11AC has come into effect only from 28.09.1996, since Rule 173Q of erstwhile Central Excise Rules, 1944 has also been invoked, the latter can very much be applicable to the entire period of dispute. 13.3 The whole issue thus boils down to whether the assessee indeed has evidence to support their assertion that there was no mischief afoot on their part. Both sides agree that the quantum of inputs and capital goods are very huge in number and consequently, the connected documents/records thereof are also voluminous. This forum definitely does not have wherewithal to examine all these documents individually and in detail to prove or disprove assertions of the assessee/Revenue. 14. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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