TMI Blog2019 (5) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court - the substantial questions of law are answered against the revenue and in favour of the assessee - appeal dismissed. - CEA-61-2017 - - - Dated:- 7-3-2019 - MR AJAY KUMAR MITTAL AND MRS MANJARI NEHRU KAUL, JJ. For The Appellant : Mr. Tajender K. Joshi, Sr. Standing Counsel For The Respondent : Mr. Amit Jhanji, Advocate ORDER AJAY KUMAR MITTAL, J. 1. This order shall dispose of a bunch of three appeals bearing CEA Nos.61, 62 and 63 of 2017 as according to learned counsel for the parties, identical questions of law and facts are involved therein. For brevity, the facts are being extracted from CEA-61-2017. 2. ITA-61-2017 has been filed by the revenue under Section 35G of the Central Excise Act, 1944 (in short the Act ) against the order dated 20.7.2016 (Annexure A-5) passed by the Customs, Excise and Service Tax Appellate Tribunal, Chandigarh Bench, Chandigarh, claiming the following substantial questions of law:- i) Whether the CESTAT is justified in reducing the penalty amount to 25% of ₹ 1,63,00,000/- as the Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed cenvat credit of ₹ 1,69,38,241/- from RG 23A Part II account towards payment of duty on clearance of their excisable goods instead paying duty on consignments basis in terms of the order dated 24.9.2001. Therefore, such clearance of excisable goods utilizing cenvat credit had been effected without payment of duty in terms of Rule 8(4) of the Rules. The Party was not entitled to utilize the said cenvat credit for payment of duty as they did not clear the defaulted amount before restoring to the facility of fortnightly payment of duty, rather, they had manipulated the account current by showing that they had paid more than the TR-6 challan. In this way, the Party had defaulted an amount of ₹ 3,32,38,241/-, out of which an amount of ₹ 1,63,00,000/- pertained to fraudulent credit taken in account current on TR-6 challan and amount of ₹ 1,69,38,241/- was utilized by the Party for their cenvat credit account for payment of duty. Accordingly, a notice dated 22.12.2005 (Annexure A-1) was issued to the Party to show cause as to why the Central Excise Duty of ₹ 1,63,00,000/- along with interest be not confirmed; recovery of wrongly utilized cenvat credit of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal and remanded the matter to the adjudicating authority as the order was passed in the absence of the appellants therein. In pursuance thereto, the adjudicating authority vide order dated 19.11.2007 (Annexure A-4) reconfirmed the demands as had been confirmed vide order dated 11.10.2006 and also enhanced personal penalties on Shri Deepak Rai Walia from ₹ 20,00,000/- to ₹ 30,00,000/- and from ₹ 10,00,000/- to ₹ 20,00,000/- upon Shri Praveen Rana. Feeling aggrieved by the order, Annexure A-4, they filed appeals before the Tribunal. The Tribunal vide order dated 20.7.2016 (Annexure A-5) disposed of all the three appeals by setting aside the demand of ₹ 1,69,38,241/- and the penalty. Further, the Tribunal reduced the penalty to 25% of ₹ 1,63,00,000/- and confirmed the personal penalty of ₹ 50,000/- each upon S/Shri Deepak Rai Walia and Praveen Rana. Hence, the present appeals by the revenue. 5. We have heard learned counsel for the parties. 6. The Deputy Commissioner, Central Excise Division, Sonepat vide order dated 24.9.2001 passed in terms of Rule 8 of the Rules had withdrawn the facility for for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest on 17.10.2001. These facts are evidence from RT-12 returns and the same has not been disputed by the adjudicating authority. In that circumstances, as the appellant has made the whole of dues within one month, therefore, the appellant is entitled to utilize their cenvat credit account for payment of duty with effect from 24.11.2001. Admittedly as per the impugned order, the appellant started utilizing the account current with effect from 18.1.2002, in that circumstances, we hold that the appellant has not contravened the provisions of Rule 8(3A) of the Central Excise Rules, 2001 by utilizing the credit account for payment of duty with effect from 18.1.2002, therefore, the demand of ₹ 1,69,38,241/- is not sustainable. Accordingly, the same is set aside and no penalty is imposable on the appellant against this charge. 7. We further find that after making defaulted payment by 17.10.2001, the appellant first time taken the credit in their PLA without payment of duty on 21.11.2001. The same continued till 13.01.2002 and the said amount was also paid by the appellant on being pointed out by the Revenue that they have taken the excess credit in their ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
