2018 (11) TMI 1378 – CESTAT KOLKATA – TMI – Quantum of demand – appellant are claiming that there is some discrepancy in the demand confirmed to the tune of ₹ 2,28,032/-, whereas as per their calculation, the total demand should have been ₹ 1,55,768/ Held that:- The issue is covered by the judgment of the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Belgaum vs. Vasavadatta Cements Ltd. [2018 (3) TMI 993 – SUPREME COURT]. In the aforesaid judgment the Hon’ble Supreme Court has held that w.e.f 01.04.2008, the cenvat credit is available only upto the place of removal.
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The demand of duty alongwith interest is upheld and since the dispute relates to interpretation of statutory provisions and there were diverse decisions of various High Courts and the matter has recently been stayed at rest by the Hon’ble Supreme Court, the imposition of penalty in the present case is not warranted – the penalty imposed under Rule 15(2) of the Cenvat Credit Rules, 2
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Excise Tariff Act, 1985. During the period from April, 2011 to March, 2012, the appellant availed cenvat credit on carriage outward service in respect of transporting of their finished goods for delivery at buyers premises. Since the service tax on the transportation charges were paid by the appellant under the Reverse Charge Mechanism in terms of Section 68(2) of the Finance Act, 1994, they availed cenvat credit to that extent. Show cause notice was issued on 16.08.2012 for disallowance and recovery of credit on input service tax so availed by the appellant along with interest and for imposition of penalty. The adjudicating authority confirmed the demand of duty amounting to ₹ 2,28,032/- alongwith interest and imposed penalty of equal amount under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. On appeal, the ld. Commissioner (Appeals) upheld the adjudication order to the extent of demand of duty and interest. He reduced the im
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377; 1,55,768/- by reversing their cenvat account vide entry Sl.No.1/4 dated 30.05.2013 and deposited the liability of interest of ₹ 40,217/- and 50% of the penalty of ₹ 77,885/- vide GAR-7 Challan No.00166 dt. 30.05.2013. Ld. Consultant cited various decisions where it was held that penalty is not imposable when dispute related to interpretation of statutory provisions. 4. Ld. DR reiterates the order of the lower authorities. 5. Heard both sides and perused the appeal record. 6. I find that the appellant is not disputing the demand of duty and interest and have also paid 50% of the penalty of the admitted demand. However, they are claiming that there is some discrepancy in the demand confirmed to the tune of ₹ 2,28,032/-, whereas as per their calculation, the total demand should have been ₹ 1,55,768/-. I find that the issue is covered by the judgment of the Hon ble Supreme Court in the case of Commissioner of Central Excise, Belgaum vs. Vasavadatta Cements Ltd.
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