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TMI Blog2014 (7) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... ate on 28/02/2000 and Department took two months to issue a new registration certificate in the name of new company. During the intervening period, the appellants received some inputs. Some of the suppliers mentioned the name of Joja in their invoices and some of them mentioned the new name. In respect of two inputs suppliers who had consigned the goods in the name of the new company, the store clerk erased the name and corrected the same as Joja in view of the fact that appellant had not been issued a fresh registration certificate in the new name and he was afraid of losing the MODVAT credit because the invoice was not in the name of appellant company. During the verification of Annexure D as per the procedure prevailing during the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed to Rs. 50,000/-. The appellants filed an appeal before the Tribunal and this Tribunal set aside the impungned order of Commissioner(Appeals) and thereby the demand for interest and imposition of penalty of Rs. 50,000/- were set aside. Revenue went in appeal against this decision before the Hon'ble High Court of Karnataka and Hon'ble High Court in their order dt. 22/07/2011 in Central Excise Appeal No.30/2007 set aside the order of this Tribunal and directed the Tribunal to pass fresh orders in accordance with law. 2. Today when the matter was called, nobody is present on behalf of the appellants and since the appeal had been filed before the Hon'ble High Court and Hon'ble High Court has passed the order consequent to that appeal, I ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . All the contentions of the parties are kept open to be urged before the Tribunal. 4. Heard the learned AR. The learned AR submits that the appellant had clearly admitted that the document was manipulated and further he also draws my attention to the appeal memorandum wherein they had stated that they are not challenging the penalty but only interest. However, I find that a miscellaneous application was filed by the appellants and this miscellaneous application was allowed. In the miscellaneous application filed by the appellant and received by the Tribunal on 12/07/2006, the appellants had submitted that the appellants in their anxiety in the loss of entire CENVAT credit for a minor lapse on the part of the store clerk had submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the miscellaneous application could not have been allowed. However, I take note of the fact that the Hon'ble High Court had directed to treat all the contentions open and pass a order in accordance with law. 5. In this case, as on 20/02/2000 when the appellant applied for fresh registration, the High Court order approving the merger of the appellant company with Vivada had already been received and it took effect from 1st March 2000 itself. That being the position, there was no need for the stores clerk to have change the name since once the High Court approved the date of merger from that date merger said to have taken effect and therefore the credit was admissible. The stores clerk in his anxiety to ensure that appellant does not lose MO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the settled legal position now that credit taken even before registration to a manufacturer would be admissible. That being the position even if the name was not changed in the registration certificate and during the period of two months, the registration remained in the name of Joja and the credit taken in the name of Vivada ----------------- would not have been admissible which is another factor in favour of the assessee in this case. That being the position, the Commissioner's decision to allow the credit is perfectly fair and judicious. 7. Next question that arises is whether the penalty of Rs. 50,000/- was imposable or not. Honbble High Court has observed that the Tribunal did not examine the facts and circumstances and did not anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of M/s. Vivada in the documents for availing the CENVAT credit. No doubt this act of the appellants is an offence. From the observation above, what emerges is that the appellants were only seeking a lenient treatment and they had not challenged the penalty imposed under Section 11AC at all in toto. Therefore, the Commissioner reduced the penalty from around Rs. 8.7 lakhs to Rs. 50,000/-. Even before the Tribunal, the submission initially was that demand for interest was harsh and penalty of Rs. 50,000/- had not at all been challenged. Only subsequently, the penalty has been challenged only on the ground that when the CENVAT credit was not demanded, penalty could not have been imposed. Nevertheless, what is to be taken note of is t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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