9911796707
Advanced Search 
TMI Blog2007 (7) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants received inputs i.e. M.S. Scrap from unregistered dealers. The appellants recorded the same in RG-23A Part-I register. Subsequently on 26-2-97 and 27-2-97, the appellants cleared the M.S. Scrap on payment of duty by debiting the amount of duty in RG-23A Part-II. Show cause notice was issued to the appellants for illegal utilization of credit on the ground that the M.S. Scrap cleared by the appellants was received without payment of duty and show cause notice was also issued to show as to why the amount should not be recovered from them and penalty should not be imposed under provisions of Rule 173Q. The adjudicating authority has confirmed the demand and imposed the penalty. On an appeal, the appellate authority also concurred wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides and perused the records. It is on record that the appellants had received M.S. Scrap from non-registered dealer during the period 13-2-1997 to 18-2-1997. It is also undisputed that the appellants have recorded the receipt of M.S. Scrap in RG-23A Part-I. It is also the undisputed facts that the appellants had informed the Revenue of the clearance of very same scrap under invoice No. 30 to 45 dated 26-2-1997 and 27-2-1997 by debiting the amount in RG-23 Part-II. It is also on record that MS Scrap, which was received by the appellants during 13-2-1997 to 18-2-1997 from non-registered dealer was non-duty paid scrap. It is also observed that the appellants were having a balance of Rs. 1,70,621.08 in RG-23A Part-II, which they could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty and non-payment of duty and hence provision of Section 11A cannot be invoked for recovery of Modvat credit, it is seen from the record that show cause notice was issued for recovery of amount under provision of Rules 9 and 57-I of the Central Excise Rules, 1944 read with Section 11A of the Central Excise Act, 1944. Provision of Rule 57-I (l)(i) reads as under :- "Where credit of duty paid on inputs has been taken on account of an error, omission or mis-construction, on the part of an officer, or a manufacturer, or an assessee, the proper officer may, within six months from the date of filing the return required to be submitted in terms of sub-rule (4) of Rule 57G and where no such return as aforesaid is filed, within six months from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivity was stopped by appellant. 7.In view of the above finding, it is very clear that the appellant, in order to pass on the credit balance in their RG-23A Part-II register, debited the amount on inputs, though he was not required to do. Hence, I do not find any infirmity in the orders of the lower authorities of confirmation of demand. 8.The order as regards to imposition of penalty upon the appellants, it is seen from the record that the penalty has been imposed on the appellants under the provision of Rule 173Q of Central Excise Rules, 1944. The provisions of Rule 173Q are as under :- "(1)Subject to the provisions contained in sub-rule (4) of Rule 57-I and sub rule (5) of Rule 57-U, if any manufacturer, producer, registered person o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or incorrect particulars in the invoice issued for the excisable goods dealt by him with intent to facilitate the buyer or supplier to avail of credit of the duty of excise in respect of such goods, which is not permissible under this rule, penalty is imposable. It is found and held by the ld. Commissioner (Appeals) that the appellants have deliberately utilized the credit lying in balance towards payment of duty on the M.S. Scrap, shown in their RG-23A Part-I account but which had admittedly, received without the cover of any duty paying documents and on which no credit had been raised in their RG-23A Part-II account and the appellant had passed on impermissible Modvat benefit to the purchaser. As such, I find that the penalty imposed on ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
