2011 (10) TMI 695 - AT - Service Tax

Tribunal grants rectification request, offers reduced penalty option under Section 11AC.

The Tribunal granted the applicant's request for rectification of mistake in its order, considering submissions on denial of Cenvat credit and invoking a ... - Issues involved:1. Rectification of mistake in the order of the Tribunal.2. Consideration of submissions regarding denial of Cenvat credit.3. Invocation of larger period for demand confirmation.4. Granting of option to pay reduced penalty under Section 11AC.5. Benefit of payment of duty, interest, and penalty within thirty days.Analysis:1. The application for rectification of mistake sought to rectify an error in the Tribunal's order dated 10-8-2011. The applicant requested consideration of submissions made in the ROM application regarding the denial of Cenvat credit. The applicant argued that no mala fide intention could be alleged against them, and the issue was of an arguable nature based on statutory provisions and previous decisions. The applicant also highlighted that the show cause notice did not specify any grounds for invoking a larger period, emphasizing the absence of suppression with the intention to evade duty.2. The applicant further made alternate submissions, requesting the Tribunal to grant the option to pay duty, interest, and penalty equal to 25% of the duty under the proviso to Section 11AC of the Central Excise Act, 1944. The applicant cited various decisions in support of this claim, emphasizing the need for granting such an option to the assessee. The Tribunal considered these submissions and the relevant legal provisions before making a decision.3. Regarding the issue of time-barred show cause notice, the Tribunal noted that the Revenue was in appeal against the order that allowed Cenvat credit only on merits. The Tribunal observed that the ground of limitation could not be canvassed strictly due to the absence of a cross-objection by the appellants. However, the Tribunal acknowledged the importance of fairness and justice in considering this aspect. The Tribunal analyzed the observations made in the previous order, indicating that the decision would not have been different even if the limitation aspect was separately discussed.4. The Tribunal addressed the point raised by the assessee regarding the adjudicating authority not granting the benefit of payment of duty, interest, and penalty within thirty days of receiving the order. The Tribunal considered the alternate submission made by the assessee and decided to grant the benefit of reducing the penalty if the Cenvat credit amount demanded, interest, and 25% of the penalty were paid within thirty days.5. In conclusion, the Tribunal decided that if the specified payments were made within the given timeframe, the assessee would not be required to pay the remaining 75% of the penalty. However, failure to comply with the payment terms would result in the assessee being liable to pay the full penalty amount as demanded by the original adjudicating authority. The Tribunal's decision on the ROM application was pronounced in court, providing clarity on the payment requirements and penalties involved.