2001 (12) TMI 375 - AT - Central Excise

Summary

Issues:
1. Recovery of wrongly availed Modvat credit from a registered dealer under Rule 57GG.
2. Imposition of penalty under Rule 173Q on a registered dealer for issuing incorrect invoices.

Issue 1: Recovery of wrongly availed Modvat credit from a registered dealer under Rule 57GG

The case involved appellants who were registered dealers under Rule 57GG of the Central Excise Rules, allowing them to pass on Modvat credit on goods received from manufacturers. The Department initiated proceedings against them for issuing modvatable invoices without actually receiving excisable goods due to the absence of a registered godown. The Deputy Commissioner ordered recovery of Rs. 25,13,825 under Rule 57-I and imposed a penalty of Rs. 2.50 lakhs. The Commissioner (Appeals) set aside the recovery order, noting that Rule 57-I does not authorize recovery from a registered dealer. The Commissioner (Appeals) upheld the penalty, stating that the appellants were no longer registered dealers post-surrender of their godown, making their invoices invalid. The Appellate Tribunal concurred, emphasizing that the appellants' registration was no longer valid post-surrender of their premises, leading to the conclusion that the invoices issued post-surrender were contrary to the law. The Tribunal allowed the appeal, setting aside the penalty as no intentional act to facilitate impermissible credit was proven.

Issue 2: Imposition of penalty under Rule 173Q on a registered dealer for issuing incorrect invoices

Regarding the penalty imposed under Rule 173Q, the Tribunal analyzed the provision stating that a wilful incorrect entry in an invoice by a registered dealer, with the intent to enable the buyer to avail impermissible credit, is a prerequisite for penal action. In this case, there was no allegation or finding of wilful intent to facilitate impermissible credit. As the lower appellate authority had already set aside the duty amount and the Department did not contest this, the Tribunal concluded that no penalty could be imposed on the appellants. Consequently, the Tribunal set aside the penalty and allowed the appeal in favor of the appellants.

This judgment clarifies the limitations on the recovery of Modvat credit from registered dealers under Rule 57GG and underscores the necessity of proving wilful intent for penal action under Rule 173Q. The decision provides a detailed analysis of the legal provisions and their application to the specific circumstances of the case, resulting in the setting aside of the penalty imposed on the appellants.