2009 (8) TMI 545 - AT - Customs

Tribunal overturns excise duty order, penalty unjustified, interest not required, Modvat credit admissible

DCM ENGINEERING PRODUCTS Versus COMMISSIONER OF C. EX., JALANDHAR

The Tribunal allowed the appeal, setting aside the impugned order, as the liability of excise duty was contested due to the absence of physical delivery ... Cenvat- Capital Goods- The appellant purchased pattern toolings from its sister concern in terms of the invoices issued. The said pattern tools were meant for use on behalf of the Maruti Udyog Ltd. for manufacture of automobile components for that concern. The agreed price of the pattern tool being Rs. 75 lacs and the same value was only billed to Maruti Udyog Ltd., by way of invoice under Rule 52A and 173G of Central Excise Rules, 1944. But in real sense, there was no removal of such goods made by appellant for which the invoice was a mere intimation and not a document to make delivery of the pattern tool to serve the purpose of Rule 52A of the Central Excise Rules, 1944 for which no duty is realizable. In the light of the decision of J.K. Cotton Spinning & Weaving Mills Ltd. v. UOI, held that- Contention of Revenue that mere issuance of invoice is sufficient to call for reversal of Cenvat credit, is inconceivable. In view of the reason given and following the ratio laid down in aforesaid decisions, the appellant shall succeed for which we allow the appeal, setting aside the impugned order. Issues involved:1. Liability of excise duty under Rule 57U read with Rule 9(2) of Central Excise Rules, 1944.2. Imposition of penalty under Rule 173Q of Central Excise Rules, 1944.3. Payment of interest under Rule 57U(5) read with Section 11AB of the Central Excise Act, 1944.4. Admissibility of Modvat credit of Rs. 25,85,800/- under Rule 52A and Rule 173G of Central Excise Rules, 1944.Analysis:Issue 1: Liability of excise duty under Rule 57U read with Rule 9(2) of Central Excise Rules, 1944The appellant contested the liability of excise duty amounting to Rs. 25,85,800/- under Rule 57U and Rule 9(2) of the Central Excise Rules. The appellant argued that there was no physical delivery of the goods to Maruti Udyog Ltd., and thus, no duty was payable as per Rule 52A. The Tribunal found merit in the appellant's argument, emphasizing the necessity of physical movement for the imposition of excise duty, as established in previous judgments. The Tribunal concluded that the proceedings initiated against the appellant were unsustainable due to the absence of physical removal of goods.Issue 2: Imposition of penalty under Rule 173Q of Central Excise Rules, 1944The Tribunal addressed the imposition of a penalty of Rs. 3,00,000/- under Rule 173Q of the Central Excise Rules. The appellant's counsel argued against the penalty, highlighting the lack of physical delivery of the goods and the absence of evidence supporting the revenue's case. The Tribunal, following established legal principles, ruled in favor of the appellant, stating that the penalty was not justified given the circumstances of the case.Issue 3: Payment of interest under Rule 57U(5) read with Section 11AB of the Central Excise Act, 1944Regarding the payment of interest under Rule 57U(5) read with Section 11AB of the Central Excise Act, the Tribunal's analysis focused on the appellant's compliance with the statutory provisions. The Tribunal found that the appellant's position, supported by factual evidence, aligned with the legal requirements, leading to the conclusion that interest payment was not warranted in this case.Issue 4: Admissibility of Modvat credit of Rs. 25,85,800/- under Rule 52A and Rule 173G of Central Excise Rules, 1944The central issue revolved around the admissibility of Modvat credit of Rs. 25,85,800/- under Rule 52A and Rule 173G of the Central Excise Rules. The Tribunal carefully examined the contractual obligations between the parties, emphasizing the necessity of physical removal of goods for the imposition of duty. The Tribunal ruled in favor of the appellant, citing previous judgments and legal principles that supported the appellant's contention that no duty was payable in the absence of physical delivery of the goods.In conclusion, the Tribunal allowed the appeal, setting aside the impugned order, based on a thorough analysis of the legal provisions, factual evidence, and established legal precedents. The Tribunal emphasized the importance of adherence to statutory requirements, particularly concerning the physical movement and delivery of goods for the imposition of excise duty and the admissibility of Modvat credit.