2018 (12) TMI 717 – CESTAT NEW DELHI – TMI – Demand of Interest and penalty – reversal of irregularly availed and utilized cenvat credit of education cess and secondary and higher education cess – Held that:- The proposal of recovery of wrongly availed cenvat credit has no more significance as apparently and admittedly the credit has already been reversed.
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Demand of Interest – Held that:- Interest set aside by the Commissioner Appeals himself. Nothing has been brought that Department has filed an Appeal challenging the same.
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Penalty – Held that:- It is the apparent and admitted case that the wrongly availed cenvat credit on education cess was not utilized till the time Department conducted audit in the appellant’s premises. Admittedly, the said entire credit has been reversed even prior the issuance of impugned Show Cause Notice. It is also the apparent fact that the duty otherwise has been regularly paid by the appellant. These admissions makes it abundantly clear that t
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ted during the financial year 2013-14 to December 2015 had noticed that appellant h ad taken and utilized the cenvat credit of education cess and secondary and higher education cess amounting to ₹ 10,78,841/- on the bills of entry issued from Reliance SEZ Jamnagar. Since, the supply from a unit located in a SEZ is an import for the unit located in domestic tariff area availment of cenvat credit of education cess and secondary and higher education cess paid on CVD was improper, a Show Cause Notice dated 55/2017 was served upon appellant calling them upon to explain as to why the aforesaid amount of wrongly taken and utilized cenvat may not be recovered in view of CCR 2004 read with Section 11A of Central Excise Act, 1944 alongwith the interest at the appropriate rate and proportionate penalty. The said proposed demand was confirmed vide the Order-in-Original bearing No. 2734 dated 08.12.17. Being aggrieved the Appeal was filed before Commissioner Appeals who vide the order under c
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so there was no intention of evading duty. Finally, it is submitted that for want of any element of fraud and in absence of any evidence thereof even the issuance of Show Cause Notice for the period 2013-14 to December 2015, as been issued in May 2017 is otherwise barred by limitation. The Order under challenge is therefore prayed to be set aside Appeal is prayed to be allowed. 4. I have also heard Ms. Tammanna Alam, Ld. AR for the Department. While justifying the impugned Order, she has submitted that Commissioner Appeals in para 6 of the Order under challenge has specifically held that the appellant had taken the credit of customs cess which is very irregular and in blatant violation of the Rules which are very clear and unambiguous. Therefore, it was a clear case of suppression of facts warranting invocation of extended period and imposition of penalty under Section 78 of the Act. Appeal is accordingly prayed to be dismissed. 5. After hearing both the parties and perusing the recor
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eged intent to evade duty. The finding of the Commissioner that the Rules are clear and unambiguous is too insufficient to invoke the grave provision of imposing penalty. For the purpose, the element of fraud, mis-representation, etc. have to be proved with the cogent evidence of any positive Act on part of the appellant with the clear intent to evade the duty. Apparently there is no such evidence. For the Rule merely being clear and unambiguous does not entitle the Department to allege and confirm the suppression/ mis-representation of the facts qua the appellant. Had the credit wrongly availed would have been utilized, the situation would have been different. In the present case, the non utilization is sufficient to extend the benefit of appellant being bonafide in deposition of duty. Hence, I am of the opinion that Commissioner (Appeals) had formed a wrong opinion while considering the clear and unambiguous rule to be sufficient to allege suppression of facts on part of the appellan
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