Econ Antri Ltd Versus CGST C.E. & C.C., Bhopal
Central Excise
2018 (11) TMI 896 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 7-9-2018
Excise Appeal No. E\/50036\/2018 [DB] – A\/53092\/2018-EX[DB]
Central Excise
MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
\nPresent for the Appellant: Ms. Rinki Arora, Advocate
\nPresent for the Respondent: Ms. Tamanna Alam, DR
\nORDER
\nPER: RACHNA GUPTA
\nThe appellants herein are engaged in manufacture of railway sleeper of cement concrete and are availing cenvat facility of duty \/ service tax paid on the inputs and input services under Cenvat Credit Rules, 2004 (CCR 2004). During an audit for the year 2013-14, the Department observed as follows:-
\n“(i) they have wrongly availed cenvat credit of Rs. 42,580\/- (Correct figure Rs. 43,075\/- including cess) under capital goods account, on the goods “MH Sheet Metal Components (Rail)” which is not covered under the definition of capital goods as define<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n or Rs. 74,94,955\/- on final products manufactured and cleared by them.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n the additional duty was required to be paid due to price escalation clause existing in the relevant contracts. Hence, the same could not be paid unless and until railway authorities finalised the relevant price escalation. Thus, the question of imposition of penalty (for an amount of Rs. 7,68,906\/-) as has been upheld by the order under challenge is liable to be set aside. Also, for the reason that the total duty of Rs. 7,93,136\/- on finalisation of escalation bills for Rs. 55,22,821\/- by the railway authorities alongwith the interest of Rs. 1,57,830\/- is more than credit availed, the penalty is therefore neither justifiable nor sustainable and thus is liable to be set aside. The further modifications are therefore prayed for in the order under challenge. Appeal is accordingly prayed to be allowed. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n voking of provisions of Section 11A\/Section 11AC for imposing penalty are opined not applicable. Those provisions can be invoked only when there is the suppression of facts that too with an intent to evade tax. Law is settled that the allegations as that of suppression with a malafide mensrea of tax evasion are of grave nature and cannot be confirmed unless and until there is a cogent evidence to that respect. For imposition of penalty, it has to be proved by the Department that the assesse acted deliberately in defiance of law and was guilty of conduct concumacious or dishonest or acted in conscious disregard of its obligation. The Hon'ble Apex Court in the case Hindustan Steel Ltd. Vs. State of Orissa 1978 (2) E.L.T. 159 (S.C.) has held that even if a minimum penalty is prescribed, the authority competent to impose penalty will be justified in refusing the invoked penalty when there is a technical or venial breach of the provisions of the act or where the breach flows from the bonafi<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n rriving to the said amount and in fact out of said bills, the amount of Central Excise duty of price escalation bill is Rs. 62,20,925\/-. Since the duty is payable on price escalation and the appellant could not have produced any document proving that the railway authorities had finalised the amount of those 13 bills at an amount of Rs. 55,22,821\/-, it is held that the order under challenge has rightly confirmed the said demand. Apparently, the appellant has failed to prove that the Bills on which amount has been calculated were merely the proposal amount. As there are no two set of bills on record, it is held that demand has rightly been confirmed under this Head. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Econ Antri Ltd Versus CGST C.E. & C.C., BhopalCentral Excise2018 (11) TMI 896 – CESTAT NEW DELHI – TMICESTAT NEW DELHI – ATDated:- 7-9-2018Excise Appeal No. E\/50036\/2018 [DB] – A\/53092\/2018-EX[DB]Central ExciseMR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Ms. Rinki Arora, Advocate Present for the Respondent: Ms. Tamanna … Continue reading “Econ Antri Ltd Versus CGST C.E. & C.C., Bhopal”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-15064","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/15064","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15064"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/15064\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15064"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15064"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15064"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\nResultantly, a Show Cause Notice No. 4879 dated 03.08.2015 was served upon them proposing a Central Excise duty amounting to Rs. 9,26,377\/- alongwith the interest at appropriate rate on the said amount and the proportionate penalties. The said Show Cause Notice was adjudicated vide the Order-in-Original No. 12300 dated 23.12.2016 vide which the wrongly availed cenvat credit of Rs. 3,92,559\/- alongwith the penalty of Rs. 1,96,280\/- was confirmed. An amount of Rs. 2,70,821\/- as was already paid by the appellant was directed to be appropriated against the said demand confirmed. Aggrieved of the said order, the Appeal was filed which has been decided by the impugned order permitting the cenvat credit of Rs. 42,580\/- Central Excise duty paid on such goods as used for repair of capital goods and the cenvat credit of Rs. 78,663\/- service tax paid on work contract service were held to be admissible. The consequent intere<\/p>\n
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\n4. While rebutting these arguments, it is submitted by the Ld. DR that the order under challenge is a speaking order having reasonable and relevant considerations. The Order-in-Original ha<\/p>\n
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\n9. Finally, coming to the issue of short payment of Central Excise duty on extra considerations under the guise of freight, it is observed from the contracts\/ purchase orders on record that the price of sleepers, freight, material, wages, taxes, etc. are all given by the railways as per the contract. The said sleepers are re<\/p>\n
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