2005 (5) TMI 144 - AT - Central Excise

CESTAT Upholds Duty, Penalty; Denial of Notification Benefit Not Contravened

The Appellate Tribunal CESTAT, Mumbai confirmed a duty of approximately Rs. 19.90 lakhs against the appellants and imposed a personal penalty of the same ... Exemption subject to non-availment of Cenvat/Modvat credits Issues involved: Duty confirmation under Section 11AC of the Act and denial of benefit of Notification No. 4/97-C.E.In this case, the Appellate Tribunal CESTAT, Mumbai confirmed a duty of approximately Rs. 19.90 lakhs against the appellants and imposed a personal penalty of the same amount under Section 11AC of the Act. The denial of benefit of Notification No. 4/97-C.E., dated 1-3-1997, as amended, was a key aspect of the dispute.Issue 1 - Benefit of Notification No. 4/97-C.E.:The notification provided concessional duty rates for specified fabrics subject to certain conditions. Condition 15C stipulated that no credit under Rule 57A and 57Q of the Central Excise Rules, 1944 should have been availed. The appellants initially took credit of Rs. 21,000/- under Rule 57Q while intending to avail the notification's benefit. Subsequently, they reversed this credit without utilizing it. The revenue contended that by taking the credit, the appellants violated the notification's condition, rendering them ineligible for the benefit.Issue 2 - Interpretation of 'availing credit':The appellants argued that the reversal of credit meant it was as if no credit was availed, citing a decision of the Allahabad High Court. They contended that not utilizing the credit should be considered as not availing it. The Tribunal referred to a Madras High Court decision defining 'avail' as taking advantage or utilizing something. Since the credit remained unutilized, the Tribunal held that the appellants had not truly availed of it.Conclusion:The Tribunal found that the appellants had not contravened the notification's condition as the credit remained unutilized. The purpose of the condition was to prevent double benefits of duty exemption and Modvat credit. Therefore, the impugned order was set aside, and the appeal was allowed in favor of the appellants, granting them consequential relief.