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TMI Blog2025 (2) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... & order for recovery of duty short paid amounting to Rs.3,086/- (Rs Three thousand and eighty six only) under Section 11A (4) of Central Excise Act, 1944. (iii) I order for recovery of Rs.30,452/- (Rs Thirty thousand four hundred and Fifty two only) refunded to party in excess of rebate available to them for clearance of good to NSEZ from them under Section 11A of Central Excise Act, 1944. (iv) I order for recovery of interest at the appropriate rate on the above amount at So No (i) to (iii) above under Section 11AA of the Central Excise Act, 1944 as applicable. (v) I impose an equal amount of penalty listed above in terms of Rule 15 (2) of Cenvat Credit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944 for contravention of various provisions of Central Excise All, 1944 and Central Excise Rules made there under, as discussed, supra. The dues so adjudged be paid forthwith. 2.1 During the course of audit of the records of appellant for the period 2010-11 to 2103-14 it was observed that the appellant was engaged in manufacture and clearance both dutiable goods (plastic moulded lamp fittings, plastic moulded cookwares, pens) as well as exempted goods (parts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted to the adjudicating and lower appellant authority. These record are not considered proper by the authorities for the purpose of rule 6(2) of Cenvat credit rules and demand is made on the exempted goods as per legal provisions which is not correct, In the face of fact that appellant maintained separate record for input used in the manufacture of exempted goods, the demand made is not legal. ⮚ The finding that mere furnishing a list of raw material by the appellant does not prove that during the relevant period they have indeed maintained separate account is not proper and correct. ⮚ The account of Purchase of raw material for exempted goods was maintained from 23.08.2010 to 31.03.2014 copy of which was submitted to original authority as well as to appellant authority but both the authority have not relied upon on the documents and have made demand of duties which is not justified and legal. ⮚ the observation of the original Authority in para 1.7 that document showing purchase of raw material for exempted goods from 31.08.2010 onward whereas as per E.R.3 they have shown to have produce quantity of exempted goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinting . The price of goods cleared include printing charges therefore demand of duty as short paid is not justified ⮚ demands made in the order are not correct and legal and the impugned order deserve to be set aside. 3.3 Learned authorized representative reiterated the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Tribunal has vide Final Order No.70897/2018 dated 15.05.2018 remanded the matter back to original authority with following observations: 3. During the course of adjudication as also before appellate forum the appellant took a categorical stand that they were maintaining separate Cenvat accounts for dutiable as well as exempted goods. They also contended that wherever common accounts were maintained they had reversed the amount availed on the common inputs, which were also used for the manufacture of exempted products. 4. While dealing with the said stand of the assessee, the appellate authority has observed that they have not produced any evidence to show that the proportionate Cenvat Credit was reversed by them before clearance of exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the party with the ER-3 returns, a mismatch was noticed in the data showing purchase of raw material for exempted goods from 31.08.2010 onwards, whereas as per ER-3 they have shown to have produced quantity of exempted goods in July 2010. Thus the documents provided by them were not complete and reliable. And as such, the party vide their letter dated 29.10.2014 have reversed Rs. 36,717/- (Under Protest) on account of credit taken of service tax in respect of proportionate services of security availed in respect of exempted product. (ii) In view of the above, I find that the Central Excise Audit team audited the records of the party on 16.09.14 and 16.09.14 for the period 2009-10 to 2013-14 and have pointed out the issue that the party have not been maintaining separate records of inventory of input and input services in terms of rule 6 (2) of CENVAT Credit Rules 2004, and they did not follow the procedure laid down in Rule 6(3) (ii) and Rale 5(3)A of CENVAT Credit Rules 2004 and the party contested the issue as raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sales transaction were genuine", As regard, the list of sale and purchase, I have already discussed in the above lines. As far as the question, of Agreement, on examination of the said agreement, I find that nothing in relation to availment of cenvat credit is referred in the said agreement whether they may avail or not, if the same is received by them. (iv). In view of the above, I find that the party has nothing in reference to their claim that they were maintaining separate account of the raw material used in exempted goods as well as dutiable goods as well as no CENVAT Credit was availed by them on raw material which was used in the manufacturing of exempted goods and I find that the party is only trying their best to mislead the adjudicating authority/ department in the guise of submitting copy of documents as provided by them with their defense reply referred above, being not reliable (list of purchase/ sale of goods) until and unless submission of them with the essential documents such as copy of ledgers of Balance Sheets, Invoices and copy of other financial records in support of their claim also. Thus, the same appears to have been fabricated at later stage with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptable as they have incurred expenses of job work got done by M/s. Luxor International Pvt. Ltd. on the goods sold to M/s. Luxor International Ltd. The extra expenditure incurred by M/s. Luxor International Ltd on behalf of the party was subsequently compensated by the M/s. Luxor International Ltd by way of book adjustment i.e issuing of credit notes, hence this amount so compensated by way of credit notes has escaped from the valuation of goods under Section 4 of Central Excise Act 1944 at the time of removal of goods. This resulted in short payment of duty of Rs.3,086/- which is also liable to 'be recovered from them. 3.13 I further find that they have cleared goods to M/s. Associated Lighting Co. and M/s INDETESH both of NSEZ, Noida for deemed Export on payment of duty and claimed rebate thereof under Notification No.19/2004-CE(NT) dated 06.09.2004. In fact in three instances, the goods sold to above said buyer was returned back and the party accordingly availed the CENVAT Credit of duty paid earlier on such clearances, but simultaneously have also claimed rebate of the same amount, under notification ibid which has resulted in excess cash payment& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the paras as discussed above is liable to be recovered under Section 11AA of the Central Excise Act, 1944 as applicable. 3.18 As regards the imposition of penalty the relevant provisions of Rule 15 of Cenvat Credit Rules 2004 read with Section 11 AC of the Central Excise Act 1944 are quoted as under. Rule 15 of CCR 2004 General Penalty -whoever contravenes the provisions of these rules for which no penalty has been provided in the rules, he shall be liable to a penalty which may extend to five thousand rupees Section 11 AC- Penalty for short levy or non levy of duty in certain cases - Where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reasons of fraud, collusion or any willful mis- statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made there-under with intent to evade payment of duty, the person who is liable to pay duty as determined under sub section (2) of Section 1 1A, shall also be liable to pay a penalty equal to the duty so determined. 3.19 I find that an equal amount of penalty can be imposed upon the party for the aforesaid contravention above i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of Rule 6(2) of CCR 2004. In this regard, I observe that the said list of raw materials was also submitted by the appellant before the adjudicating authority who after going through the said list has categorically pointed out that a mismatch was noticed in the data showing purchase of raw material for exempted goods from 31.08.2010 onwards, whereas as per ER-3 they have shown to have produced quantity of exempted goods in July 2010. Thus the documents provided by them were not complete and reliable. And as such they had vide their letter dated 29,10.2014 have reversed Rs. 36,717/- (under protest) on account of credit taken of service tax in respect of proportionate services of security availed in respect of exempted product. It is also observed by the adjudicating authority that the appellant has not produce any essential/ required proof to the facts that their contention is correct except some copy of purchase and sale details and on examination of the said documents the said copy of purchase and sale details are not suffice for the purpose to establish the fact that they were maintaining separate accounts of the raw material used in exempted goods as well as dutiable goods esp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as recovery of excess refund claim of Rs. 30,452/- is concerned find that in the impugned 010 it is categorically hold by the appellant that the appellant had cleared goods to units situated at NSEZ Noida which were returned back and the appellant had availed the Cenvat Credit of duty paid earlier on such clearances but simultaneously have also claimed rebate of the same amount resulting in excess cash payment of rebate for Rs. 30,452/-. In the appeal memorandum, appellant has merely stated that the credit in question was correctly availed by them and the said amount does not relate to rebate claim. However, no supporting document/ evidence to this effect is submitted by the appellant. Therefore, I find no reason to take this contention of the appellant on face value and accordingly find no reason to interfere on this account also. 12. In view of the foregoing discussion and findings, I find no reason to interfere with the impugned OIO and accordingly dismiss the present appeal." 4.5 Though it is settled law that the appellate authority should not reverse the identical finding of fact recorded by the two subordinate authorities viz adjudicating authority and first appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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