TMI Blog2009 (10) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... le for confiscation. Penalty under Rule 15 of Cenvat Credit Rule, 2004 read with section 11AC of Central Excise Act, 1944 not imposable in absence of intention to evade being a revenue neutral situation. Penalty not imposable. - E/1616/2007 andE/32/2008-Mum - A/588-589/2009-WZB/C-IV/SMB - Dated:- 23-10-2009 - Shri Ashok Jindal, Member (J) Shri Yogesh Patki, Advocate, for the Appellant. Shri Manish Mohan, SDR, for the Respondent. [Order]. - The first appeal is filed by the appellant M/s. Cosmo Films Ltd. against the impugned order wherein a penalty of Rs. 50,000/- was imposed under Rule 15 of the Central Excise Rules, 2002 whereas the second appeal is filed by the Revenue against the said impugned order for enhancement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s but not reversed 4% Addl. Duty import (Spl. CVD) at the time of clearance of inputs as such. He submitted that due to oversight/ignorance, they had not reversed the credit of Addl. Duty (import) of 4% and pointing out the same, they reversed the Addl. Duty (imports against the clearances of imported inputs as such from the factory for the period from 1-3-2006 to 30-11-2006. A show cause notice was issued for proposing the penalty under the provisions of Section 11AC read with Rule 25 of Central Excise Rules, 2002 and Rule 15 of Cenvat Credit Rules, 2004. In reply to the show cause notice, the assessee submitted that clearances of inputs as such is a regular feature in any industry and the provisions for effecting such clearances are conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, hence equivalent amount of penalty should be imposed. 8. Heard both sides. 9. The learned Advocate for the appellant submits that no penalty can be imposed under Rule 15 of the Central Excise Rules, 2002 as the Rule 15 deals with "Special Procedure for payment of duty". He further submitted that the penalty at the most can be imposed under Rule 25 of the Central Excise Rules, wherein confiscation and penalty previsions are provided but in this case goods were not held liable for confiscation hence no penalty can be imposed. He further submitted that as per show cause notice it was proposed that penalty be imposed under the provisions of Section 11AC of Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty was inadvertent as most of the inputs are indigenously procured. There was no intention to evade the duty. To support this contention he relied on Hindalco Industries Ltd. - 2007 (220) E.L.T. 477 (Tri.-Kolkata) = 2009 (15) S.T.R. 637 (Tribunal) wherein it was held that "Adjudication order not containing findings imputing appellant to charges in notice - Records not revealing contumacious conduct of appellant - Appellant not to face penal consequence when mens rea absent - Penalty set aside." He further relied on CCEx Customs, Nasik v. Jyoti Structures Ltd. - 2009 (247) E.L.T. 555 (Tri.-Mumbai) = 2009-TIOL-1159-CESTAT-MUM wherein it was held that wrongly availed exemption notification, no mens rea provided by Revenue - No cause for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not imposable as there is no such provision, under Rule 25 of the said Rules for contravention of provision of Central Excise Rules, penalty can be imposed where the goods are liable of confiscation. Further, I find that the penalty can be imposed under Rule 15 of the Cenvat Credit Rules, 2004 for wrongly availment of cenvat-credit on the input, with intention to evade payment of duty in terms of the provisions of Section 11AC of the Central Excise Act. In this case, I find it is the situation of revenue neutral and there was no intention of the appellant to evade the duty, provisions of Section 11AC are not attractable in the facts and circumstances of the case. 12. With these observations, I hold that the penalty under Rule 25 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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