TMI Blog2007 (2) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs. 18,174/- and directed its recovery under Rule 12 of the Cenvat Credit Rules, 2002, imposing penalty of the like amount under Rule 13(1) of the said Rules, and ordered interest to be charged. 2. The appellant had availed Cenvat credit of Rs. 18.174/- on "shelling charges". The assessee had received shelled, machined and grooved sugar mill machinery parts from the job worker and had taken credit of duty paid by them on shelling, machining and grooving charges under Invoice No. 15 dated 21-5-2003. 3. The Revenue alleged that the invoice did not contain any details of new spares used at the time of shelling, machining and grooving of the sugar mill machinery parts, but merely showed only "shelling, machining and grooving charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant under Rule 13(1) of the Cenvat Credit Rules, 2002. By the Order-in-Original, penalty of Rs. 18,174/- was imposed under Rule 13(1) of the said Rules which was confirmed by the Commissioner (Appeals). 5 1 In this context, we may refer to the provisions of Rule 13 of the Cenvat Credit Rules, 2002, which reads as under: "Rule 13. Confiscation of penalty. - (1) If any person, takes Cenvat credit in respect of inputs or capital goods, wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the document accompanying the inputs or capital goods specified in Rule 7, or contravenes any of the provisions of these Rules in respect of any inputs or cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here any of the provisions of the Rules is contravened in respect of any inputs or capital goods. 5.2 Sub-rule (2) of Rule 13, the other hand, specifically deals with cases of breaches-defaults, which are made with intention to evade payment of duty and provides for penalty in terms of the provisions of Section 11AC of the Act. Under Section 11AC of the Central Excise Act, 1944, penalty "equal to the duty" determined is required to be imposed. The cases falling in sub-rule (2) of Rule 13 are: (i) Where Cenvat credit has been taken or utilized wrongly on account of fraud, wiliul mis-statement, collusion or suppression of facts; (ii) When there is any contravention of the provisions of the Act or the Rules made thereunder, with inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the authorities below while imposing the penalty equal to the wrongly availed Modvat credit. The authorities could have imposed even the minimum penalty of Rs. 10,000/- which is prescribed under Rule 13(1) or could have even imposed any higher penalty up to the amount of Modvat credit wrongly availed under Section 13(1). Having regard to the facts and circum stances of the case, since no intention to evade payment of duty as contemplated by Rule 13(2) was alleged and there is no other valid ground for imposing the maximum penalty equal to the amount of wrongly availed Modvat credit under Rule 13(1), the ends of justice will be met by imposing the minimum penalty of Rs. 10,000/- under Rule 13(1) on the appellant. The impugned order, subj ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
