2014 (3) TMI 1033 - AT - Central Excise

Tribunal Grants Stay on Erroneous Refund Case, Exempts Packing Charges

The Tribunal allowed the stay applications in the case involving alleged erroneous refund under Notification No. 56/2002-C.E., duty demand on packing ... Demand of erroneous refund - pre-deposit of duty demand, interest and penalty - Held that:- On going through the Chart given in Para 7 of the show cause notice regarding month-wise percentage of duty payment through PLA, it is seen that though during most of the months, the same has been varying from 38% to 41%, in some months - March, 2011, June, 2011 and March, 2012, the same was 2% and 0%. Prima facie, from this data, it is clear that even if during certain months, lesser amount of duty was paid through Cenvat credit resulting in higher payment of duty through PLA and higher quantum of exemption, in subsequent months, it got compensated by much higher percentage of duty payment through cenvat credit varying from 98% to 100% and during those months, the appellant have availed almost negligible exemption. In view of this, this has to be treated as revenue neutral case and as such, there is merit in the appellant’s plea that there was no intention to avail higher quantum of exemption. As regards, duty demand of ₹ 18,18,507/- on the value of the corrugated boxes applied by M/s. Vishal Industries free of charges, we are of prima facie view that since tin containers were marketable as such, the cost of corrugated boxes supplied by M/s. Vishal Industries would not be includible in the assessable value. Thus, on both the counts, M/s. Vinayak Industries have prima facie case in their favour. As regards, M/s. Vishal Industries, penalty has been imposed on them under Rule 26(1) of the Central Excise Rules under which penalty is imposable on a person, who deals with the excisable goods in the manner specified in this Rule knowing that the same were liable for confiscation. In this case, none of the offences to which Rule 26(1) of the Rules applies, had been committed by M/s. Vishal Industries. Therefore, we are of the prima facie view that imposition of penalty on them under Rule 26(1) of the Central Excise Rules, 2004 was not called for and as such, M/s. Vishal Industries also have strong prima facie case in their favour. In view of the above discussion, the requirement of pre-deposit of duty demand, interest and penalty by M/s. Vishal Industries and the requirement of pre-deposit of penalty by M/s. Vishal Industries is waived for hearing of their appeals and recovery thereof is stayed till the disposal of the appeals. Stay applications are allowed. Issues: Alleged erroneous refund under Notification No. 56/2002-C.E., duty demand on packing materials, imposition of penalties.Alleged Erroneous Refund under Notification No. 56/2002-C.E.:The case involved M/s. Vinayak Industries, manufacturers of tin containers availing exemption under Notification No. 56/2002-C.E. They were accused of deferring the availment of cenvat credit, resulting in higher duty payment through PLA and claiming a higher refund. The show cause notice sought recovery of the 'wrongly taken refund.' The Commissioner confirmed a demand against M/s. Vinayak Industries for erroneous refund and short payment of duty. However, the appellant argued that the situation was revenue-neutral, with a strong prima facie case in their favor. The Tribunal found merit in the appellant's plea, considering the revenue-neutral nature of the case.Duty Demand on Packing Materials:Additionally, a duty demand was imposed on M/s. Vinayak Industries for short payment of duty on additional consideration of packing materials received from M/s. Vishal Industries. The appellant contended that even if the duty was paid, it would have been through PLA and would be available as a refund. They argued that the cost of packing charges should not be included in the assessable value of the goods. The Tribunal found a prima facie case in favor of M/s. Vinayak Industries on this issue as well.Imposition of Penalties:Penalties were imposed on both M/s. Vinayak Industries and M/s. Vishal Industries. The appellant argued against the imposition of penalties, stating they had a strong prima facie case. The Tribunal observed that M/s. Vishal Industries had not committed any offenses warranting the penalty imposed under Rule 26(1) of the Central Excise Rules. As a result, the Tribunal found that the imposition of penalties was not justified. The requirement of pre-deposit of duty demand, interest, and penalties was waived for the hearing of their appeals, and recovery was stayed until the disposal of the appeals.In conclusion, the Tribunal allowed the stay applications, considering the revenue-neutral nature of the alleged erroneous refund, the assessable value of the goods regarding the duty demand on packing materials, and the lack of justification for imposing penalties on the parties involved.