2022 (2) TMI 730 - AT - Central Excise

Employee absolved of penalty for inadvertent involvement in credit availment, distinguishing unintentional errors from deliberate misconduct.

The Member set aside the penalty imposed on the appellant, ruling that the employee's inadvertent involvement in the wrongful credit availment by the ... Levy of penalty under Rule 15(1) of Cenvat Credit Rules, 2004 read with Rule 26 of Central Excise Rules, 2002 - availment of wrong credit - forged bills of entry - HELD THAT:- Since the main company has settled their case under SVLDRs, 2019 no discussion is required to be made for company’s case. However, the bill of entry is not an invalid document, the only lapse on the part of the company is that they have taken the credit on the Bill of Entry whereas the custom duty was paid but the same was not in the name of the M/s Nitco Ltd , Village- Silli, Silvassa, Gujarat. In this fact it cannot be said that the present appellant who is an employee of the company has intentionally done any fraud. The issue involved is of interpretation of Cenvat Credit Rules, 2004 for which the company M/s Nitco Ltd, Silli has been demanded the wrongly availed credit and penalty was also imposed. In this nature of case personal penalty cannot be imposed on the employee as the credit was not taken on a forged or invalid document but the only lapse was that the bill of entry was not in the name of the company but in the name of the different location. However, both the company belongs to one entity only even the availment of credit does not amount to double benefit. In these facts of the case, the personal penalty cannot be imposed on the employee. Penalty set aside - appeal allowed - decided in favor of appellant. Issues:Challenge to imposition of personal penalty under Rule 15(1) of Cenvat Credit Rules, 2004 read with Rule 26 of Central Excise Rules, 2002 based on awareness of Central Excise Provision and involvement in wrong credit availment by the company.Analysis:The appellant contested the imposition of a personal penalty of Rs. 2,50,000 under the specified rules due to alleged involvement in the wrongful credit availment by M/s Nitco Ltd. Despite the absence of representation for the appellant during the proceedings, it was noted that the main company, M/s Nitco Ltd, had resolved its case under SVLDR and had their appeal deemed withdrawn. The Authorized Representative for the Respondent reiterated the findings of the impugned order, emphasizing that the appellant was aware of the wrongful credit availment by M/s Nitco Ltd and the relevant Cenvat Credit provisions, justifying the penalty imposition.Upon reviewing the submissions and records, the key issue revolved around M/s Nitco Ltd availing Cenvat credit based on a Bill of Entry not in their name but in the name of their other unit. The presiding Member acknowledged that the main company's case settlement under SVLDRs obviated the need for further discussion on their case. It was highlighted that the Bill of Entry, while not invalid, was improperly utilized for credit availment, as it was not in the name of M/s Nitco Ltd. The Member opined that the appellant, an employee of the company, did not engage in intentional fraud, as the discrepancy stemmed from the entry's misalignment with the company's location. The issue primarily pertained to the interpretation of Cenvat Credit Rules, 2004, with M/s Nitco Ltd facing demands for wrongly availed credit and associated penalties. Notably, the Member concluded that in such a scenario where the credit was not obtained through forged means and did not result in double benefits, imposing a personal penalty on the employee was unwarranted.Consequently, the Member set aside the penalty imposed on the appellant, allowing the appeal with corresponding relief. The judgment emphasized the distinction between inadvertent lapses in credit utilization and intentional misconduct, leading to the decision to absolve the appellant of the personal penalty in this case.