Birla Corporation Ltd Versus CGST C.C & C. E-Jabalpur
Central Excise
2018 (12) TMI 717 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 12-11-2018
Excise Appeal No. E/51548/2018 [SM] – FINAL ORDER NO. 53313/2018
Central Excise
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Ms. Rinki Arora, Advocate
Present for the Respondent: Ms. Tamana Alam, DR
ORDER
PER: RACHNA GUPTA
Present Appeal has been directed against the Order of Commissioner Appeals bearing No. 7975 dated 15.02.2018.
2. The relevant facts in brief for the purpose are that the appellants are engaged in manufacture of cement clinker and cement. They also have the Central Excise Registration No. The appellant were also availing facility of Cenvat credit under Cenvat Credit Rules 2004 (hereinafter referred to as Rules). The Department during the course of audit of the appellant conducted during the financial year 2013-14 to December 2015 had noticed that appellant h ad taken a
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d by the appellants. However, the penalty as imposed was confirmed holding that the reversal of the wrongly availed cenvat credit was made by the appellant only after audit was conducted by the Department. Had there been no audit, the wrong credit already been availed could have been utilised, the same was held to be suppression of facts and the penalty was confirmed. Being aggrieved is the present Appeal.
3. I have heard Ms. Rinki Arora, Ld. Advocate for the appellant. She has submitted that though the cenvat credit was availed but it was never utilized rather was reversed even prior the issuance of the impugned Show Cause Notice. No question of the proposed recovery or of the interest or even for the penalty imposed at all arises. The interest part has already been done away by the Commissioner Appeals. However, penalty has wrongly been confirmed as there was no suppression of facts more so there was no intention of evading duty. Finally, it is submitted that for want of any element
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cance as apparently and admittedly the credit has already been reversed. As far as the proposal of interest thereupon is concerned, the same has already been set aside by the Commissioner Appeals himself. Nothing has been brought to my notice that Department has filed an Appeal challenging the same. I otherwise find no infirmity in the said finding. The Order under challenge to that extent stands confirmed. Now coming to the proposal of penalty, 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 there is no case of alleged intent to evade duty. The finding of the Commissioner that the Rules are clear and unambig
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