Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2017 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (12) TMI 1153 - AT - Central ExcisePenalty - Wrong availment of CENVAT credit twice - Held that: - It is seen that the respondents had wrongly availed cenvat credit of ₹ 17,56,363/-. When the same was detected instead of reversing the credit, they once again took credit resulting in second wrong availment of credit. ₹ 17,56,363/- is not a small amount that the respondents could not have noticed. When instead of reversing the credit, they took it once again, it clearly points to the intention to evade duty as ₹ 35,12,729/- is not a small amount which they could not have noticed - penalty justified. Penalty on the Managing Director of the respondents firm - Rule 26 (2)(ii) of Central Excise Rules read with Cenvat Credit Rules 2004 - Held that: - The Order-in-Original points out that the Managing Director had by his statement dated 21.01.2014 stated that ER1 return filed by them indicate that certain amount was reversed in October 2009 on account of wrong credit taken a year back. The said statement was incorrect, and thus his involvement cannot be ruled out - penalty rightly imposed. Refund in respect of duty paid twice - unjust enrichment - Held that: - there is no provision under Central Excise Act and Rules allowing suo moto taking of credit or refund without sanction by the proper officer. The appellant’s contention that refund in respect of duty paid twice cannot be considered as refund of duty and is only the accounting error does not appeal to us as the debit entry made in the accounts is towards payment of duty only and therefore refund of these amounts has to be considered as refund of duty only - It is seen that at the material time, the respondents were selling the goods on the basis of MRP. In these circumstances, the MRP includes the duty and thus it cannot be held that the respondents had not recovered the duty from the ultimate customer - the adjustment of ₹ 11,59,902/- and ₹ 171,432/- cannot be allowed. The impugned order is set aside and the order in original is restored.
|