2011 (3) TMI 512 - HC - Central Excise

Court Affirms Tribunal Decision, Dismisses Appeal on Order Legality

COMMR. OF C. EX. AND S. TAX, LTU, BANGALORE Versus BHARAT ELECTRONICS LTD.

The Court upheld the Tribunal's decision, dismissing the appeal and affirming the legality and validity of the order. The appellant's compliance with duty ... Penalty and interest - Wrongful availment of modvat/cenvat credit - Since, the assessee has not maintained separate accounts of either purchase of inputs which are utilised in the manufacture of exempted goods or dutiable goods - It is also not in dispute that the assessee has wrongfully availed modvat/cenvat credit - On being pointed by way of a Show Cause Notice, they have promptly reversed the credit - They also paid a substantial amount of duty payable even before the order in original was passed. After the order was passed, within the stipulated time, the balance duty leviable has been paid - Though the amendment was retrospective in nature, the penalty being penal in character cannot be retrospectively imposed and therefore, the tribunal has rightly set aside the order imposing the penalty - Hence, the assessee had reversed the credit, paid the duty in respect of which wrongly modvat/cenvat credit was claimed within the time stipulated, the liability to pay the interest does not arise - Decided in favour of assessee. Issues:Challenge to Tribunal's order allowing appeal and setting aside penalty and interest for wrongful availment of modvat/cenvat credit.Detailed Analysis:Issue 1: Allegations and AccusationsThe appellant, a manufacturer of electronics and telecommunication components, was accused of not maintaining separate inventory accounts for inputs used in goods exempted from excise duty, wrongfully availing modvat/cenvat credit, and not paying the required amount for exempted goods as per Central Excise Rules, 1944.Issue 2: Tribunal's OrderThe Tribunal set aside the penalty and interest imposed on the appellant after considering relevant materials, Supreme Court judgments, and Department Circulars. It noted the absence of machinery for recovery during the relevant period, leading to the retrospective enactment of Clause 82 of the Finance Act, 2005, to rectify the legal flaw.Issue 3: Appellant's ContentionsThe revenue contended that the appellant wrongfully availed credit, did not maintain separate accounts, and suppressed facts, making them liable for duty, interest, and penalty. The amended provisions allowed for recovery of interest, emphasizing the appellant's liability.Issue 4: Appellant's DefenseThe appellant argued that even if the amendments were retrospective, interest liability arises only if duty is not paid within the stipulated time. They had paid a substantial amount before the order and the balance within the specified period, negating the need for interest payment as per the amended provisions.Issue 5: Tribunal's Decision JustificationThe Tribunal found the appellant had not maintained separate accounts, wrongfully availed credit, but promptly reversed it upon notice. The appellant paid the duty before and after the order within the stipulated time, leading the Tribunal to rightly set aside the penalty as it cannot be imposed retrospectively.Issue 6: Interest Payment ClarificationThe Tribunal justified not levying interest as the duty was paid within the stipulated time, distinguishing it from recovery proceedings. The appellant's actions of reversing credit and paying duty promptly aligned with the requirements, eliminating the need for interest payment.Issue 7: Validity of Tribunal's OrderBased on the record, the Court found no legal infirmity in the Tribunal's order, affirming its legality and validity. As no substantial legal question arose, the appeal was dismissed, upholding the Tribunal's decision.In conclusion, the Court upheld the Tribunal's decision, emphasizing the appellant's compliance with duty payment timelines and the inapplicability of retrospective penalty imposition. The detailed analysis covered the legal aspects, factual findings, and interpretations leading to the dismissal of the appeal.