2009 (10) TMI 300

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....uty. 2. The facts of the case are that the assessee is engaged in the manufacture of excisable goods viz. BOPP films and also availing Cenvat credit on the inputs as well as capital goods under Cenvat Credit Rules, 2004. 3. In terms of Notification No. 19/2006-Cus. dated 1-3-2006 an additional duty (import) of 4% leviable under Section 3(5) of the Customs Tariff Act, 1975 is chargeable on all imported goods. In terms of Circular No. 18/2006-Cus. dated 5-6-2006 issued under F.No. 605/44/206-DBK, it is clarified that a full credit of 4% additional duty (import) will be allowed to manufacturers of excisable goods. 4. As per Rule 3(5) of Cenvat Credit Rules, 2004 when imported/domestic inputs/capital goods are removed as such, the assessee i....

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....their factory the inputs so cleared are mostly indigenously procured inputs on which there is neither any levy of the said 4% Special CVD nor availment of the credit of the same. Thus non-reversal of 4% of special duty was a bona fide clerical mistake and further submitted that whatever duty paid at the time of clearance of inputs as such is taken as credit by their sister unit therefore the situation is revenue neutral and there is no intention to evade duty or suppression of facts and prayed that penalty cannot be imposed. 6. The Deputy Commissioner while adjudicating the show cause notice have given in his findings that in spite admitting some force in the submissions of the assessee regarding inadvertence as well as revenue neutral pos....

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....ns of various rules as discussed above and the original adjudicating authority has imposed a composite penalty under all the above three provisions. To support his contention he has contended that the composite penalty under Section 11AC and Rule 25 of the Central Excise Rules and Rule 15 of the Cenvat Credit Rules cannot be imposed. For this he relied on Avdel (India) Pvt. Ltd. v. CCE, Mumbai - 2004 (171) E.L.T. 201 (Tri.-Mumbai) wherein it was held that composite penalty under Section 11AC and Rule 173Q of Central Excise Rules, 1944, not permissible. Further he relied on Monica Electronics Ltd. v. CCE, New Delhi - 2001 (134) E.L.T. 454 (Tri.-Del) wherein it was held that in absence of apportionment of penalty under Section 11AC of Central....

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....A, 1944 and prayed that the penalty is not imposable on the appellant. 10. On the other hand learned SDR submitted that the appellant has not reversed the Cenvat credit availed by them at the time of clearance of the goods and the same facts was suppressed by the appellant and he has reversed the said amount only on pointing out by the Department hence penal provisions is imposable on the appellant and as per the provision of Section 11AC the penalty to be imposed equivalent amount of duty. To support his contention he placed reliance on Century Tiles Ltd. v. CCEx, Ahmedabad - 2008 (6) LCX367 wherein it was held that in the present system of self assessment where documents like invoice, challans and other transaction details are not suppli....