2011 (4) TMI 274 - AT - Central Excise

Waiver of pre-deposit - Reversal of the Cenvat Credit - The appellant being absent very care was taken for examining the findings of the first appellate order so also the ground of appeal resting on the record. On reading of para 4.1 of the appellate order that brings out contumacious conduct of the appellant and the first appellate authority has unambiguously stated that the appellant was in habit of availment of credit wrongfully - The present case is a proper case to meet the fate of penalty - Decided against the assessee whether the excess credit availed by the appellant is recoverable with interest and penalty - There is no scope for reversal of the first appellate authority s order for the reason stated - Decided against the assessee

Summary

Issues Involved: Alleged wrongful availment of Cenvat Credit, levy of penalty, appeal against the decision of the Appellate Authority.

Analysis:
1. The appellant failed to appear for the hearing multiple times despite an interim order against them. The record revealed habitual wrongful availment of Cenvat Credit without entitlement, even after being informed of the same. The appellant only reversed the credit after audit scrutiny and before the show-cause notice was issued.

2. The only issue in this appeal was the levy of penalty. The Revenue sought confirmation of the first appellate order without any concession for the wrongful availment of Cenvat credit. The Tribunal, after hearing the arguments and examining the records, upheld the first appellate order. The appellant's contumacious conduct and habitual wrongful availment of credit were highlighted, leading to the confirmation of the penalty.

3. Another appeal was filed by the appellant against the decision of the Appellate Authority confirming the order-in-original. The issue in this appeal was also the recoverability of excess credit with interest and penalty. The Tribunal found no grounds to reverse the decision of the first appellate authority, as the circumstances and findings were similar to the previous appeal. Therefore, this appeal was also dismissed.

In conclusion, the Tribunal upheld the penalties imposed due to the appellant's wrongful availment of Cenvat Credit and dismissed both appeals against the decisions of the Appellate Authority.